Involving Appellate Counsel Before the Appeal
Appellate Specialist, Patrick Yingling, a Partner at Reed Smith, joined us at this year's Thomas Miller Bodily Injury Seminar to discuss the appellate process and the reasons to consider engaging appellate counsel when a case is still in litigation at the pre-trial and trial stages.
Fundamentally, appeals are powerful tools for litigants. They can wipe out big verdicts, they can create settlement opportunities post-trial or post-verdict, and they can provide leverage in pre-trial settlements as well. Further, appeals give parties an opportunity for a review of a case when they are in an unfavourable jurisdiction. While these tools are significant, they are best used with the help of lawyers who know that appellate process, because the limits, mechanics and opportunities for appeal are complex as was discussed at the Seminar. That is what an appellate counsel brings to the table – knowledge of how the appellate process works and experience with handling and arguing appellate issues.
Limits for an Appeal
There are perimeters around appeals. First, in general, there are no new arguments on appeal, and any such arguments raised for the first time would be waived. There are also no new facts, meaning that no new facts can be raised for the first time on appeal. The fact-finding process occurs at the trial level and therefore this process cannot be done on appeal. In other words, the appeal involves a “cold record” – the parties cannot expand the factual record on appeal.
So what is the appellate court’s job? It is a “court of error”, which means that the appellate court is “charged only with determining whether the errors of fact and law asserted by appellants present valid reasons for reversing the results reached by the district court”. Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 259-60 (5th Cir. 2000).
Opportunities for an Appeal
When, then, can you appeal? In general, “only orders disposing of all claims against all parties are final and appealable”. Thus, if a plaintiff asserts two claims against a defendant, and the court issues an order resolving only one of the claims, that is generally not a final, appealable order. Or, if a plaintiff sues more than one defendant, and the court issues an order that resolves the case against only one defendant, that is generally not a final, appealable order. However, there are several exceptions where an appeal may also be filed before all claims against all of the parties are final. Three such exceptions were discussed at the Seminar.
First, there is the Rule 54(b) entry of final judgment, which states: “When an action presents more than one claim for relief … or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.” This rule thus provides an avenue for an immediate appeal where the court issues an order resolving only some of the claims or an order resolving the case against only some of the parties.
Next is the interlocutory appeal under § 1292(b) certification, which provides: “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves  a controlling question of law  as to which there is substantial ground for difference of opinion and  that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.” This rule provides an avenue for an immediate appeal where an order on a controlling issue has been entered and reasonable jurists might disagree on the resolution of the issue in the order.
Lastly, at the state court level, there can be other rules for when an appeal may be filed. For example, New York is generous in permitting litigants to take interlocutory appeals, as of right, to the Appellate Division from just about every type of non-final order.
Mechanics of an Appeal
After discussing the limits and opportunities for an appeal, Mr. Yingling addressed the mechanics of an appeal. A vital part of perfecting an appeal is perfecting the appellate procedure. There is a myriad of rules surrounding appellate procedure, so at the Seminar, the focus was on some of the key appellate procedural concepts.
First, it is critically important that the notice of appeal be filed promptly. Generally, the time to file the notice of appeal is within 30 days of the judgment or order in question, and the notice of appeal is filed with the trial court. There are specific requirements for the notice contents as well, including making sure that the judgment being appealed is identified. From there, the parties are usually given a formal briefing schedule which lays out when the appellant’s brief, appellee’s brief and appellant’s reply brief are due. That said, extensions are common.
Once all briefings are filed, there may be an oral argument, but that is at the court’s discretion. If an oral argument is scheduled, the parties typically have 10 to 20 minutes per side before a three-judge panel. The lawyer will present while the judges ask questions.
From there, the court will issue its decision (typically in 2 to 6 months after the oral argument). If a party is not happy with the decision, there are three options available: 1) Panel rehearing: Petition for same 3-judge panel to reconsider; 2) En banc rehearing: Petition for entire appellate court to rehear the case; and 3) Certiorari: Petition for the Supreme Court to take the case.
Involving Appellate Counsel at the Trial Stage
Given the complexity of the appellate process, the appellate specialist can be an important member of your litigation team, particularly in complex and/or high-value cases. Some important reasons to involve appellate counsel at the pre-trial and trial stage, depending on the nature of the case, are:
- An appellate counsel can assist with developing legal theories for a case, particularly when the case may turn on a matter of law. This also allows trial counsel to focus more on fact development.
- A specialist will also be able help identify and preserve arguments by making sure that the trial stage record is developed enough to assert an argument on appeal.
- As mentioned, there are opportunities to appeal early in some cases, and an appellate specialist can help identify those opportunities.
- Appellate specialists tend to write a lot of briefs, so they can help with brief writing at the trial stage while trial counsel focuses on strategy and/or discovery.
- Lastly, appellate counsel are uniquely positioned to provide valuable insight on the chances of success on appeal in order to assist the litigation team and the client with valuing the case for settlement purposes.
For the reasons set forth above, the decision to utilise an appellate specialist should be considered early and often in litigated matters, particularly those cases with complex legal concepts and/or potentially high-value cases. If executed correctly, the opportunities available with an appeal have the potential to dramatically change the outcome of a case.
Thomas Miller is grateful to Mr. Yingling for his time and insight into work of the appellate counsel.