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March 2020

 

10 TIPS FOR SECURING BENEFICIAL AMICUS SUPPORT ON APPEAL 

By Melinda S. Kollross[1]

 

INTRODUCTION

Amicus curiae or “friend of the court” briefs are submitted by persons or entities who are not parties to a given lawsuit. Originally intended as neutral, objective third party pieces, today’s amicus briefs usually take sides, advocating in favor of a particular party or outcome.  Thousands of these amicus briefs are filed every year in cases pending before the United States Supreme Court, state supreme courts, and intermediate appellate courts throughout the federal and state judicial systems. The potential influence of such briefs is manifest— reviewing courts regularly cite to them in their opinions.  As stated in an American Bar Association article on the topic: “One study showed that between 1986 and 1995 the U.S. Supreme Court referred to at least one amicus brief in 37 percent of its opinions; another study revealed that state supreme courts acknowledged or cited amicus briefs in 31 percent of cases and discussed arguments made in amicus briefs in 82 percent of the cases sampled.” (See https://www.americanbar.org/ groups/gpsolo/ publications/gp_solo/2015/september-october/ amicus_briefs_how_write_them_when_ask_them/).

Indeed, the FDCC recently filed an amicus brief in the Florida Supreme Court.  Wilsonart LLC v. Miguel Lopez, No. SC19-1336.  The Wilsonart court will decide whether to adopt the federal Celotex/Anderson standard for summary judgment in place of Florida’s current stricter standard.  The FDCC’s amicus brief supports this major change, which it deems “a point of interest to all FDCC members.” (Winter 2019, Federation Flyer, FDCC News, p.48)  Many other organizations have also filed amicus briefs in Wilsonart.  This is just one example of many across the nation.

The following tips can help you decide when amicus support should be sought, how it can most readily be obtained, and how to maximize its effectiveness in your case.     

1.         Assess the Need for Amicus Support Promptly

It is never too early to begin thinking about amicus support.  If your case involves a legal issue with potential significance beyond the parties to the action, amicus support should at least be considered.  In most instances, of course, amicus support will not be pursued.  Whether for strategic, tactical, economic or other reasons, the majority of appeals are resolved without amicus input.  The one exception is United States Supreme Court practice, where amicus participation is the norm rather than the exception.  In fact, over 800 amicus briefs were filed in the Court’s 2017 Term alone.  (See https://www.scotusblog.com/2018/07/empirical-scotus-getting-rid-of-those-amicus-blues/).

So what factors should weigh in the amicus analysis?  First and foremost is the significance of the legal issue(s) being addressed—beyond the instant litigants.  Will the appellate tribunal’s ruling in this case make new law or change existing law to a significant degree?  Are major economic or social policies involved?  Will thousands of people, businesses, organizations or governmental entities potentially be affected?  Are “hot button” issues in play?  If the answer to any of these questions is “yes”, a reasonable basis for seeking amicus support exists.

A second consideration is the position and preferences of the parties.  Is this a good test case for the issue(s) at hand?  Does the party litigant desire amicus involvement?  Is counsel an experienced appellate practitioner who knows the benefits of obtaining amicus support and how to secure that support if desired?  How does the court view amicus filings?  Is it welcoming like the United States Supreme Court or leery of amicus briefs like the Seventh Circuit Court of Appeals?

The amicus analysis should be performed sooner rather than later.  Doing so will afford more time for the rest of the process if amicus support is going to be pursued. 

2.         Review Applicable Amicus Rules and Deadlines

The procedural rules governing amicus filings vary from state to state and between the federal circuit courts of appeal and the United States Supreme Court.  It is imperative that any litigant seeking amicus support review the applicable amicus rules at the outset to gain a complete understanding of the process.  Of particular note are: (1) the means by which amicus filings are permitted, (2) whether amicus briefs are allowed at the present stage of the proceedings, (3) deadlines for filing amicus briefs; and (4) content and format requirements for amicus briefs.

a.         Permission

In the federal system, amicus briefs are permitted by leave of court (i.e. upon motion), at the court’s request, or with the consent of all parties.  (See S. Ct. R.37 and FRAP 29).  Governmental entities and their officers may file an amicus brief without the consent of the parties or leave of court.      (Id.)  The states each set their own rules for permitting amicus briefs, which may include leave of court, at the court’s request, upon written consent of all parties, or some other requirement(s).  Where a motion is required, the states vary as to whether the proposed amicus brief must be filed with the motion.  In federal court, the proposed amicus brief must accompany the motion.  (Id.).     

            b.         Stage(s) Allowed

The United States Supreme Court allows amicus briefs in support of or in opposition to a petition for a writ of certiorari and at the merits stage.  The states vary as to whether amicus briefs may be filed concerning requests for permissive appeals.  For example, Illinois does not allow amicus briefs supporting or opposing a petition for leave to appeal to the Illinois Supreme Court.  New York does allow amicus briefing on motions for permission to appeal, provided leave of court is obtained.  And Pennsylvania allows amicus briefs in support of or against a petition for allowance of appeal, if the amicus curiae participated in the underlying proceeding as to which the petition for allowance of appeal seeks review, or by leave of court. Some courts allow amicus briefs on petitions for rehearing, some do not.  Always check the rules and speak with court personnel to confirm whether amicus support is allowed at your stage of the litigation.  Doing so can save time, effort and money—not to mention the potential embarrassment of asking for amicus support (or attempting to file an amicus brief) where the rules do not allow it. 

c.         Deadlines

Rule 29(6) of the Federal Rules of Appellate Procedure specifies that for amicus briefs during initial consideration of a case on the merits, “[a]n amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant's or petitioner's principal brief is filed. A court may grant leave for later filing, specifying the time within which an opposing party may answer.”

United States Supreme Court deadlines depend on the stage of the action.  At the certiorari stage, the deadline to file an amicus brief in support of the petitioner or appellant is 30 days after the case is placed on the docket or the Court calls for a response, whichever is later.  (S. Ct. R. 37.2).  These deadlines may not be extended. The deadline to file an amicus brief in support of a respondent or appellee is the same as the deadline to file a brief in opposition or motion to dismiss or affirm.  This amicus deadline is extended when the deadline to file the brief in opposition or motion to dismiss or affirm is extended.  (Id.). 

At the merits stage, the deadline to file an amicus brief is 7 days after the brief for the party supported.  If the amicus does not support either party, the deadline is 7 days after the time allowed for filing the petitioner’s or appellant’s brief, irrespective of when briefs are actually filed.  These deadlines may not be extended.  (S. Ct. R. 37.3(a)).  

State court deadlines for filing amicus briefs vary from state to state.  Be sure to check them at the outset so you know what time frame you have to work with and can advise prospective amici accordingly.

d.         Brief Content and Format

The applicable rules governing content and format for amicus briefs must be followed precisely.  This includes all requirements concerning the amicus statement of interest, which may or may not include disclosure of information concerning who paid for and/or participated in authoring the amicus brief.  Some courts, like the Seventh Circuit, will pre-approve briefs for filing. Failure to scrupulously abide by all content and format rules risks rejection of the amicus brief entirely, or diminished credibility if the brief is accepted.

3.        Identify Potential Amicus Filers    

Amicus support can come from many sources. These include academics or other experts, businesses, professional and trade associations, all manner of nonprofits, and governmental entities at the local, state and federal level.   Such individuals and groups may be interested in getting involved in your case because:

·         They possess expertise in the subject matter of the litigation and thus stand in a position to educate the court;

·         The court’s resolution of the case may impact the members of a particular business, industry, profession or trade and the amicus wants to speak to the court on their behalf;

·         They espouse a particular value, mission or world view that may be advanced or hindered by a ruling on the issue(s) at hand;

·         Governmental policy concerns or operational interests may be directly or indirectly impacted by the court’s decision.

Several of these considerations might be implicated in a given case.  Thus, it is not unusual for multiple amici to file briefs in particularly significant matters.  For example, six other entities have joined the FDCC in filing amicus briefs in Wilsonart: The US and Florida Chambers of Commerce, Florida Defense Lawyers Association, Florida Justice Reform Institute, Florida Trucking Association, Health Care Association & Associated Industries of Florida, and the Products Liability Advisory Council.  (Winter 2019, Federation Flyer, FDCC News, p.48)  A high profile United States Supreme Court case may garner 50-100 amici. 

Sometimes a party litigant knows of many potential amicus supporters, other times a few brainstorming sessions may be necessary to prepare a list of amicus candidates.  In either case, one amicus might be able to help identify other individuals and entities to be contacted for additional amicus support.  Indeed, organizations that regularly file amicus briefs frequently have a network of other organizations that they are used to working with on amicus filings.     

4.         Summarize Key Facts and Issue(s) To Be Addressed

Before contacting individuals or entities to inquire about amicus support, it helps to prepare a succinct written summary of the key case facts and issue(s) to be addressed.  This is essential if “cold calling” a major national organization like the American Medical Association or the US Chamber of Commerce for amicus assistance.  But it is also beneficial when reaching out (by telephone, email or in person) to smaller groups and individuals or organizations with whom you have personal contacts.  Think of it as your amicus “elevator speech.”  You want to be able to explain in just a few sentences what type of case you have, where it is pending, what the key issue is, and why you think whomever you are addressing would want to get involved as an amicus.  Also know the applicable deadline for the amicus brief you are requesting…it is one of the first things many recipients of your speech are going to ask.            

5.         Contact Amicus Candidates

Once you have your elevator speech prepared, you are ready to start contacting amicus candidates.  The process for doing so depends on the party litigant’s relationship to the prospective amicus candidates. If the party is a member of prospective amicus organizations or has used amici in the past, a few telephone calls or emails to contacts may get the ball rolling.  In cases with less preexisting contacts, “cold-calling” via an organization’s website, amicus committee, or general information number may be in order.  The goal here is to generate enough interest with your elevator speech to get in front of the right decision makers who can approve amicus participation.  Be prepared for a few rejections.  Prospective amici usually have time, budget, personnel, and policy constraints that limit the number of cases they can get involved in, especially if they will be responsible for preparing their own amicus brief rather than just joining someone else’s.  

6.         Define Amicus Roles

An effective amicus curiae brief can assist the court in one or more well-recognized roles.

First, an amicus brief can clarify and/or supplement the main legal and factual arguments made in a party’s brief.  This may be particularly helpful in complex cases, or those where space limitations impact a party’s ability to comprehensively address the issues in their own brief.  It may also be useful where additional non-record facts and data would assist the court in making a more fully informed decision.  A “me too” amicus brief that simply repeats a party’s arguments using slightly different language does not assist the court and should be avoided.

Second, an amicus brief can advise the reviewing court of the potential legal, social and/or economic impact of its decision on particular individuals, groups, businesses, industry or the public at large— beyond the parties to the present case.  Such briefs typically include non-record facts such as social science data, research studies, economic analysis, and other supporting information. 

Third, an amicus brief can provide a more complete and comprehensive view of the larger legal landscape for the appellate court’s decision. Such a brief may inform the court of other pending cases that may be impacted by its ruling, note variations and distinguishing factors among the cases, and propose a refined legal analysis or limited ruling in light of the “bigger picture.”  This type of amicus brief can also present in depth analysis of a statutory or regulatory framework beyond that contained in the party briefs.

Fourth, an amicus brief can offer deep expertise in specialized fields beyond that possessed by the parties.  Amicus briefs from academia, subject matter experts, professional, business, or trade associations, and various governmental entities can all educate the court on issues that the parties may not fully recognize, understand or explore in their briefs.         

7.         Coordinate Amicus Strategy

Whether you have one amicus or several amici, coordination is key to maximizing effectiveness.  The party and its amicus supporter(s) should confer early on concerning record materials, existing research, applicable rules and deadlines, the supported party’s main arguments, known opposing arguments, and the role each amicus brief will fulfill.  Doing so can save time and money while avoiding duplicative arguments and other needless redundancies.

Sophisticated parties and their appellate counsel will continue to communicate regularly with their amicus supporters throughout the briefing process.  Draft briefs (main and amicus) should be circulated for review and comment among all concerned so that everyone stays informed and aligned.  For respondents/appellees, opposition briefs (party and amicus) should likewise be circulated for review (and possible refutation) by supporting amicus curiae.  Amicus briefs filed in support of neither party must also be considered as such briefs may favor one side or the other despite its professed neutral stance.                

8.         Encourage Joint Amicus Briefs

The Circuit Advisory Committee Note to Rule 29.1 of the United States Court of Appeals for the Ninth Circuit States:

The filing of multiple amici curiae briefs raising the same points in support of one party is disfavored. Prospective amici are encouraged to file a joint brief. Movants are reminded that the Court will review the amicus curiae brief in conjunction with the briefs submitted by the parties, so that amici briefs should not repeat arguments or factual statements made by the parties…. (Rev. 7/94; 12/1/09)

These words of wisdom apply beyond the Ninth Circuit.  No appellate court wants to read multiple “me too” amicus briefs raising the same facts and arguments as the party brief or the briefs of other amicus filers.  A joint brief filed on behalf of multiple amici is vastly preferable to a series of repetitive briefs that dilute the impact of key points and reduce persuasive value overall.  More is not better in this context.  It is counterproductive.      

9.         Assist Amicus in Effectively Presenting Their Perspective  

Parties and their counsel should not write or pay for any part of an amicus brief, which would seriously undermine its credibility.  However, it is perfectly appropriate for parties and their counsel to meet with amici, suggest approaches for briefing, and provide feedback on draft briefs circulated for review.  An effective amicus brief should be short, simple, complete and compelling.  It should offer the court something new and significant to consider in its analysis. Avoid exaggeration, overstatement, and attacks on opposing counsel (or their amici). 

The most powerful amicus briefs contain more than a thorough legal analysis of cases and statutes.  As one commentator explains: “[c]ommon-sense reasoning, addressed to real consequences, has great importance to the Court….The amicus brief that puts technical legal reasoning into a pragmatic context will receive the most attention.” (See https://www.mayerbrown.com/en/ perspectives-events/publications/no-date/amicus-briefs-in-the-supreme-court).

Unlike party briefs, amicus briefs may cite facts and materials outside the record.  But they may only do so in analyzing general legal principles and policy issues.  They may not seek to “supplement” the record on appeal by citing evidence specific to the parties or the instant case that was not made part of the record below.  

Finally, amicus briefs should focus on the proper development of the law and not just the desired result in the case at hand. 

10.       Leverage Amicus Support in Party Brief(s) and at Oral Argument

Do not assume that the reviewing court will necessarily read all, or any, of the amicus briefs filed in your case as a matter of course.  Instead, leverage the most compelling points from your supporting amicus briefs by referencing them directly in your party briefs and potentially at oral argument as well.  Doing so may convince the court to review an amicus brief it otherwise would not have read, or at least be made aware of the most critical information contained in such briefs so that it may be considered in the court’s decision-making process.     

CONCLUSION

Securing high quality, compelling amicus support for your position in a significant case can increase its persuasiveness and improve your chances of success on appeal. As Justice Ruth Bader Ginsburg has noted: “There is useful knowledge out there in friend of the court briefs.”  (See https://empiricalscotus.com/2016/05/11/the-most-effective-friends-of-the-court/).  Justice Breyer has likewise commented that amicus briefs “play an important role in educating judges on potentially relevant technical matters, helping to make us not experts but educated lay persons and thereby helping to improve the quality of our decisions.” Justice Alito concurs, observing that “[e]ven when a party is very well represented, an amicus may provide important assistance to the court . . . [by] collect[ing] background or factual references that merit judicial notice.”  (Allison Orr Larsen, William & Mary Law School Research Paper No. 09-273, 100 Va. L. Rev. 1757 (2014)). 

Take it from these experts: a well-written amicus curiae brief presenting compelling information and argument beyond that contained in the party briefs truly is a “friend of the court.”  Such briefs are well worth a party litigant’s efforts in obtaining them to provide the appellate tribunal with additional insights into why that party’s position is the correct one, promoting the proper development of the law and maximizing its chances of prevailing on appeal.  

 

© 2020 Melinda



[1] Melinda S. Kollross is an AV-rated Preeminent shareholder and Chair of Clausen Miller's Appellate Practice Group, handling post-trial and appellate litigation for savvy clients nationwide. Licensed in Illinois and New York, she has litigated more than 150 appeals in state and federal reviewing courts, including participation in three appeals before the United States Supreme Court.  Her practice includes commercial litigation, first-party property, liability insurance coverage and liability defense.  Melinda is a proud member of the FDCC, DRI and the Appellate Lawyers Association.

 

 

February 2020


FDCC At Work: The Celotex Standard Is Not Just For Federal Courts.

 

By: Peter O. Glaessener, Angela Flowers, and Jamie Huffman Jones

 

The Celotex Trilogy. In a trilogy of cases decided over 30 years ago, the United States Supreme Court adopted a summary judgment standard now known collectively as the Celotex standard. This standard provides structure and fairness to dispositive motion practice. These cases are Celotex Corp. v. Catrett, Anderson v. Liberty Lobby, Inc., and Matsushita Electric Industrial Co. v. Zenith Radio Corp.

 

Read the full article here.

 

December 2019

Best wishes for a productive and happy new year.

Why an Appellate Section?

Many of the FDCC sections are oriented towards substantive (e.g., Employment) or industry (e.g., Transportation).  The appellate section is different.  Its approach cuts across substantive and issue lines and addresses a particular slice of the advocacy process.  So, why an appellate section?  Because appeals bring a different perspective.  Legal advocacy is important in the trial court, but trials are often ultimately about facts.  Legal advocacy skills, by contrast, predominate on appeal.  Appeal is not only where cases are won (or lost) on the law, it is where the law develops, is made and shaped.  The appellate section gives us an opportunity to examine that process and improve our participation in it.  It allows us to bring unique advocacy insights to others.  And, it is inherently cross-jurisdictional.  If you are interested in these issues, please join us.

 

If you are already a member, please participate.  We need your passion and expertise.  We need your articles.  We need your wins, so we can promote you.  We need your participation in planning and being on panels.  If you have ideas or content to contribute, please let me know.  Section involvement is open to all and all are encouraged to help the section thrive.

 

FDCC 2020 Winter Meeting, Scottsdale, AZ

 

Please plan to join us at Winter Meeting in Scottsdale, March 3-8, 2020.  In particular, we look forward to everyone attending the Friday morning March 7 section presentation with the MDL section and joining us for the section dine around on Friday night, March 7.

 

The room block is now open, information about it and registration are on the FDCC website.  Make your arrangements now.  Cactus League Spring Training will be in full swing and the rodeo is in town.

 

The Upcoming Meetings

 

Planning is underway for the summer meeting July 25 to August 1, 2020 in Bermuda.  We are likely teaming up with the Extracontractual Liability section for a presentation.  If you would like/be willing to participate in planning or on a panel, please speak up.  We are also starting to plan for the Winter 2021 meeting.  If you would like to help plan/participate in one or presentations, please contact section chair Bob Olson, rolson@gmsr.com.

 

Section Member News

 

Section Vice Chair Laurie Hepler from San Francisco recently became the Contributing Editor for the leading treatise on California appeals—Eisenberg, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group).  Laurie, with the help of associates at her firm, has worked with the book’s author to update all chapters for 2019.

 

September 2019

 

Welcome back from Summer. Time for a productive Fall. Charlie Frazier, having done a terrific job as Section Chair, has moved to the Projects and Objectives Committee (P&O in FDCC lingo) and the Admissions Committee. But not without acknowledgement of his strong work. Charlie received FDCC’s John Appleman Award as outstanding Section Chair. I have the honor and daunting responsibility of following in Charlie’s bootsteps. The Section Vice Chairs are Angela Flowers, Kubicki ▪ Draper, Ocala, FL, Stephen Feldman, Ellis & Winters LLP, Raleigh, NC, and Laurie Helpler, Greines, Martin, Stein & Richland LLP, San Francisco, CA. Please feel free to reach out to any of us.

Contribute

The Section affords a number of opportunities to demonstrate your passion and expertise. There are opportunities to contribute an article for the FDCC’s Insights. The Sections page on the FDCC website allows us to provide links to your recent publications wherever first published. And when you have recent wins, let us know and we will try to give you a shout out. (See below.) FDCC will be starting a podcast service early next year. We have upcoming summer and winter meetings. If you have ideas or content to contribute, please let me know. Section involvement is open to all and all are encouraged to help the section thrive.

 

FDCC 2020 Winter Meeting, Scottsdale, AZ

 

For the Winter Meeting in Scottsdale, March 3-7, 2020. Please plan to join us. Scottsdale is easy to get to. The weather in early March is perfect. And Cactus League Spring Training will be in full swing (Go Dodgers).

 

We will partner with the Class Action/MDL Section for our section meeting.The topic will address interlocutory appeals and potential relief available during Class and MDL proceedings. Although the schedule is not out, we will have a Section dine-around dinner one evening. Please plan on attending and getting to know your fellow Section members.

 

The Recent Sun Valley Annual Meeting

 

If you were in Sun Valley, you know how spectacular it was. The Section’s joint presentation with the ADR section, Mediating Before and After Judgment, was a great success. Ninth Circuit Court of Appeals Mediator Sasha Cummings, former FDCC president Jean Lawler, and Section Vice Chair Stephen Feldman could not have been a better panel, with many behind the curtain insights.

As with all FDCC panels, the related paper should be available on the FDCC website as soon as it is revamped. Future programs may also be recorded and made available.

 

The Upcoming 2020 Summer Meeting, Bermuda

 

The summer meeting next year will be July 25 to August 1, 2020 in Bermuda. Bermuda is a British Overseas Territory so get your passports in order. They drive on the wrong side of the road, but everything else is marvelous. If you have ideas for our Section presentation, we would love to hear them.

 

Welcome New Member, Aaron Silletto!

 

Aaron J. Silletto is a Partner with Goldberg Simpson. He joined the firm in 2004 and his practice primarily includes insurance and tort defense, insurance coverage and bad faith, criminal defense, constitutional law and appeals, and general civil litigation. Prior to joining the firm, he worked two years as a staff attorney at the office of the Louisville Metro Public Defender.

 

Welcome to the FDCC, Aaron!

 

More New Members

 

If you know of deserving peers who might become new FDCC members, please let me know.

 

Recent Win!

 

Laurie Hepler, of Greines, Martin, Stein & Richland LLP in San Francisco, recently helped win a defense verdict—confirmed with the denial of postjudgment motions—in a Northern District of California federal class action brought by non-South Asian workers alleging racial discrimination in firing brought against an information technology services subsidiary of India’s largest company. Slaight v. Tata Consultancy Services, Ltd. Laurie’s successful works is an example of how helpful appellate lawyers can be teamed up with a trial team, a topic discussed at the Section’s presentation last year in Maui.


 

June 2019

 

Bring on summer! I hope everyone has had a good year so far and is having a good start to summer. Below you will learn news of upcoming events, introduction of a new FDCC and Section member, a recent Section-member win, and summaries of recent case law and rule amendments.

 

Sun Valley Annual Meeting

 

I hope your summer plans include attending the Annual Meeting in Sun Valley, July 30 - August 3. Please register as soon as possible and secure a spot for the many events and excursions in the beautiful surroundings.

 

Joint Presentation with ADR Section. Our Section will team with the ADR Section to present Mediating Before and After Judgment on Thursday, August 1 at 8:00 a.m. The panel discussion will cover the practicalities and nuances of mediating claims both before and after judgment, including which approaches work, how to handle differing gambits by the other side, and some of the unique factors that come into play once judgment is entered. Our distinguished panel consists of Jean Lawler, of Lawler ADR Services, Los Angeles; Sasha Cummings, Circuit Mediator of the Ninth Circuit Court of Appeals, San Francisco; and Stephen Feldman, of Ellis Winters, Raleigh, NC. Bob Olson, of Greines, Martin, Stein & Richland , Los Angeles  will serve as moderator.

 

Joint Dine Around with ADR Section. The two Sections will dine together on Friday, August 2 at 7:00 p.m. at Ketchum Grill , 520 East Ave, Ketchum. For nearly 27 years, “The Grill” has become a can’t-miss food destination for visitors and a gathering spot for locals. Located in the historic Ed Williams House, built in 1885, The Grill has been selected as one of the “eight best Ski town restaurants” by Snow Country Magazine with “food rivaling Manhattan’s best.” It represents what is best in “American Cuisine”—local and seasonal richness combined with the owners’ passion for food throughout the world, great service, atmosphere, and most of all the community of sharing a meal with one another.  Here you’ll find house-made breads and desserts, fruit-wood grilled meats, Idaho venison and lamb, fish, small pizzas, seasonal variety, nightly specials, and an awarding winning wine list and great selection of micro-brews. Please join us for delicious food and fun conversation!

 

Welcome New Member, Marcy Hogan Greer! 

 

  Last month, the FDCC elected Marcy Hogan Greer as a member. Marcy is a Board-certified appellate specialist who also has a national class-action practice. She is one of my law partners, and I know you all will enjoy getting to know her.  

 

Marcy is recognized for her work in federal and state trial and appellate courts throughout the country. Her practice consistently includes class-action and mass-tort cases, including federal and state multidistrict litigation. This experience contributed to her recognition in Chambers USA: America’s Leading Lawyers for Business in Appellate Litigation, accreditation in Best Lawyers in America in Appellate, Bet-the-Company, and Commercial Litigation, and selection as the “Lawyer of the Year” in 2016 and 2012 for Austin Appellate Practice and 2015 for Austin Bet-the Company Litigation. Marcy has also been recognized as a Texas Super Lawyer for her appellate work since its inaugural list, and has been repeatedly listed in the Top 100 Texas Lawyers, Top 50 Central Texas Lawyers, and Top 50 Women Lawyers recognized by that publication. Marcy is the National Editor of the first and second editions of A Practitioner’s Guide to Class Actions (ABA 2010, 2017).

 

Marcy is active in the ABA’s Tort Trial & Insurance Practice Section. She clerked for Carolyn Dineen King, the former Chief Judge of the U.S. Court of Appeals for the Fifth Circuit. In addition, Marcy has been a member of the State Bar Pro Bono College for almost all her career. She is currently representing her second death-row inmate, and has obtained orders from a Texas criminal court staying execution and permitting DNA testing in order to support a claim for actual innocence.

 

In June 2017, Marcy was awarded the Louise B. Raggio award given by the Texas Bar Association’s Women and the Law Section to recognize an attorney who has actively addressed the needs and issues of women in the legal profession and the community. She also served as the Lead Pro Bono Partner with Texas Appleseed on a major project for the Supreme Court of Texas focused on improving the lives of foster children in Texas, and was awarded the Texas Bar Association’s Frank J. Scurlock Award for Outstanding Legal Services to the Poor in 2011.  She continues to be active in the community as a Founder and Executive Committee Member for the Center for Women in Law, President and Trustee for the Texas Supreme Court Historical Society, and a member of the Dell Children’s Council, which raises money for the Dell Children’s Hospital. 

 

Welcome to the FDCC, Marcy!

 

Recent Win!

 

Bob Olson, of Greines, Martin, Stein & Richland LLP in Los Angeles, won an appeal on behalf of the defendant employer in Pryor v. Fitness International, LLC, No. B287829, 2019 WL 92775 (Cal. Ct. App., 2d Dist. Jan. 3, 2019) (unpublished).  The plaintiff’s husband was killed while on a bicycle by a driver under the influence of drugs.  The driver was an employee of defendant Fitness International (dba LA Fitness) where he sold health-club memberships.  His job was at the location and he had no reason to travel.  The complaint alleged that the employee took heroin while on the job, which the employer knew or should have known (allegedly because he spent a lot of time in the bathroom).  Because the employee was so out of it that he could not read his sales script, his manager told him to take an early lunch to see if his condition might improve.  When it did not, the manager terminated his shift for the day and told him to leave the premises.  He then went out to his girlfriend’s vehicle (a co-employee), drove off and committed vehicular manslaughter, for which he pleaded guilty and is serving time. 

 

The trial court dismissed the claim on demurrer (equivalent to a motion to dismiss for failure to state a claim).  The Court of Appeal affirmed, holding that the employer owed no duty as a matter of public policy to the general public to control the behavior of an employee who (1) was not on the clock, (2) was not performing a special errand for the employer, and (3) who’s condition was not caused by any conduct of the employer.  A petition for review with the California Supreme Court is pending, but as an unpublished opinion review is unlikely.


 

FDCC 2020 Winter Meeting, Scottsdale, AZ

 

For the Winter Meeting in Scottsdale, March 3-7, 2020, we will partner with the Class Action/MDL Section for our section meeting.  Our proposed topic will address interlocutory appeals and potential relief available during Class and MDL proceedings.  If you have (1) ideas for specific topics in this area, (2) ideas for good client or judicial speakers, or (3) an interest in writing and speaking on this topic, please let me know.

 

Click here to view Pertinent New Case Law and Rule Amendments.

 

  

March 2019

 

 

Joint Dine Around with the Healthcare Practice Section at The Driskill Grill

Attending the Winter Meeting in Austin? If so, please come to the Section dine around with the Healthcare Practice Section Tuesday, March 26 at 7:00pm at the Driskill Grill in the historic Driskill Hotel, 600 Brazos Street. https://driskillhotel.com/dining/driskill-grill/ If you want to step back into Texas history for a superb meal, this is the place! Per the website: “A Zagat-named Must-Visit Old-School Steakhouse [it has plenty of non-meat options] and also the iconic date spot of LBJ and Lady Bird, The Driskill Grill is a blend of rustic and refined. Savor signature dishes, including dry-aged steak, and sip a selection from our Wine Spectator-awarded list.”

The restaurant is within walking distance from the hotel. We Please RSVP to me if you wish to come. For more information about the restaurant and menu

The Driskill Hotel is a Romanesque-style building that was completed in 1886. It is the oldest operating hotel in Austin, and one of the best-known hotels in Texas. https://driskillhotel.com/about/

 

Recent wins by Section members!

Stephen Feldman of Ellis & Winters LLP in Raleigh, N.C., won a unanimous decision from the Supreme Court of North Carolina in a significant health-care dispute. Stephen represented the North Carolina Board of Physical Therapy Examiners, which had been sued by a sister licensing board, the North Carolina Acupuncture Licensing Board. The lawsuit concerned a physica-therapy treatment called dry needling. The Acupuncture Board challenged the Physical Therapy Board’s conclusion that dry needling falls within the scope of physical therapy practice in North Carolina. The Supreme Court rejected that challenge. North Carolina physical therapists provide hundreds of thousands of dry needling treatments to North Carolina patients annually. This victory ensures that these patients can continue to receive this effective and safe treatment. A copy of the opinion can be found here.

Angela Flowers of Kubicki Draper in Ocala, Florida, obtained reversal of a final judgment on damages following a jury trial in an automobile-negligence case. The appellate court agreed with defendant that the trial court improperly granted summary judgment on liability, thereby depriving defendant of his comparative-negligence defense. The decision clarifies the limitations on Florida’s existing common-law rebuttable presumption of sole negligence that attaches to the driver of a rear-following vehicle involved in a rear-end collision. The court made clear that the presumption does not completely insulate a negligent lead driver from liability for comparative negligence as a matter of law. Where issues of disputed fact exist regarding the lead driver’s fault, negligence and causation must be decided by the fact-finder. On remand, the case will be retried on the issues of both comparative negligence and damages. The case is Restal v. Nocera, 2019 WL 1086585 (Fla. 5th DCA 2019) https://edca.5dca.org/eOrder.aspx?id=62430-181490-1377425-5610

Bob Olson of Greines, Martin, Stein & Richland in Los Angeles represented one of the insurers in Yu v. Liberty Surplus Ins. Corp. (2018) 30 Cal.App.5th 1024. That case involves California’s statutory scheme governing default judgments, which a default judgment may not exceed the amount pleaded in the complaint. Plaintiff filed a construction defect suit against a contractor seeking not less than $10 million. The contractor cross-complained against several subs. The cross-complaint did not specify any amount sought but “incorporated by reference” the underlying complaint “for identification and information purpose only” (and thereby not admitting the truth of its allegations). Elsewhere the cross-complaint alleged a damages “amount precisely unknown” or “in an amount presently unknown” but to be established at trial. The trial court entered a default judgment against the sub for just over $1.25 million, the contractor assigned its rights to the insured, and the insured then sued the sub’s insurers to collect on the default judgment. The Court of Appeal held the default judgment void because no amount was stated in the cross-complaint and the “incorporate by reference” of the underlying complaint did not suffice to allege an amount in the complaint as required by California’s default judgment scheme.  A petition for review is pending. 

 

Important decision from the U.S. Supreme Court

One of the worst—if not the worst—nightmare for an appellate attorney is missing a jurisdictional deadline, such as the date by which a notice of appeal is due. Unfortunately, that happened recently. Most missed deadlines fly under the radar in terms of national news. This one didn’t.

Nutraceutical Corp. v. Lambert: Rule 23(f) deadline cannot be equitably tolled

On February 26, the Supreme Court ruled Nutraceutical Corp. v. Lambert that the 14-day deadline under Federal Rule of Civil Procedure 23(f) for petitioning a court of appeals to hear a discretionary appeal from a class-certification order cannot be equitably tolled. The district court had decertified the class. The plaintiff’s counsel expressed an intent to file a motion for reconsideration of that decision, and a deadline was set for filing that motion. The motion for reconsideration was filed in accordance with that deadline. The petition for permission to appeal was filed within 14 days after the motion for reconsideration was denied. The Ninth Circuit found the petition timely. But the Supreme Court said no.

Justice Sotomayor’s opinion for a unanimous Court explained that “[w]hether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility.” Slip op. at 4. “Where the pertinent rule or rules invoked show a clear intent to preclude tolling, courts are without authority to make exceptions merely because a litigant appears to have been diligent, reasonably mistaken, or otherwise deserving.” Id. The Court focused on Federal Rule of Appellate Procedure 26(b)(1), which provides that “the court may not extend the time to file: . . .a petition for permission to appeal . . . .” Id. at 5. The Court found no way around the “clear intent” of this rule.

This case is a good reminder for lawyers that not all deadlines can be extended, even if the trial court wants to grant an extension. The Supreme Court noted that some courts of appeals have concluded that a motion for reconsideration filed within the 14-day period extends the deadline for a petition for permission to appeal on the theory that the class-certification order is not “final.” But the Court did not address that issue, so the safest approach would be to file the petition within the 14 days. (And such petitions are limited to approximately 20 pages of large font text.) The Court also noted that a different result might be reached if the district court had misled the plaintiff’s lawyer, but that did not happen in this case.

For the opinion, go to https://www.supremecourt.gov/opinions/18pdf/17-1094_bq7d.pdf

[Thanks to Wystan Ackerman for this case summary.]

 

Section Project – Providing a list of “hot topics” addressed in recent decisions of the highest courts of each State

As mentioned in the prior Newsletter, the Section is developing a repository of “hot topics” addressed in recent decisions of the highest courts of each State, to be provide by Section members. We are still working on the best way to convey this information to the entire FDCC membership.

Ideally, we like to provide the information twice a year. Therefore, after providing the first summary of “hot topics,” it would be helpful to update it approximately every six months. We have a draft of topics recently addressed in the California Supreme Court and from Texas. Those of you who have volunteered, please provide a list of topics and brief summaries of the cases by April 15.

          If you haven’t volunteered, but would like to, please let me know the jurisdiction(s) you wish to cover. Below are the jurisdictions currently covered by Section members.

Charlie Frazier, Chair

cfrazier@adjtlaw.com

 

 

Jurisdictions

Section member volunteers

California

Laurie Hepler, Bob Olson

Connecticut

Wystan Ackerman

Florida

Angela Flowers

Illinois, Missouri, Indiana

Beth Bauer

Texas

Charlie Frazier

 

August 2018

 

Recent win!

Section Member Angela Flowers of Kubicki Draper, Florida, recently secured a reversal on certiorari review in favor of her client/Defendant of a trial-court order granting Plaintiff leave to amend her complaint to add a claim for punitive damages. Plaintiff alleged that Defendant, a facility providing services to developmentally disabled adults, acted with gross negligence in supervising clients attending its programs. As a preliminary matter, Plaintiff was required to proffer punitive-damages evidence demonstrating a reasonable basis for such recovery, which Defendant argued she had failed to do. Florida’s Fifth District Court of Appeal reversed, agreeing with Defendant that the trial court applied the wrong legal standard when it evaluated the proffer.

Congratulations, Angela!


The Section Presentation at the Annual Meeting in Maui

On Friday morning at the Annual Meeting in Maui, the Section presented, jointly with the Trial Tactics section: “Strategic Litigation: How an appellate perspective can assist in the trial court.”  Panel members were Tim Pratt (former general counsel for Boston Scientific), Clark Hudson from the Neill, Dymott firm in San Diego and the trial tactics section, and Angela Flowers from Kubicki Draper in Florida and the appellate section.  Bob Olson from Greines, Martin in Los Angeles and the appellate section moderated. Charlie Frazier authored the accompanying paper. 

The presentation was well attended (especially for a Friday morning after a Luau), with an audience of about 30. The discussion focused on how appellate counsel can contribute (and what they should stay out of) in the trial court. Tim Pratt expressed some initial hesitancy about the idea of having appellate counsel involved, pointing out that as a client he expected his lawyers to be fully capable of handling the case. But he came around, saying that he appreciated the idea of having a lawyer at trial, or during the run-up to trial, who was focused upon and devoted to addressing the legal issues in the case, a “legal specialist” (rather than appellate specialist) in his terminology. 

Clark and Angela pointed out the areas where such an appellate or legal specialist are likely to be most helpful: e.g., jurisdiction, standing, novel/unsettled law, and class-action/multi-district litigation. It was discussed how it is not appellate counsel’s role to nudge trial counsel to make objections or the like, but that appellate counsel can be a double-check to ensure that everything gets into the record (e.g., transcripts of played videotaped evidence, off-the-record jury instruction arguments). 

After the session, there was meditation, yoga, and mai tai.

[Many thanks to Vice Chair Bob Olson for this report.]


Section Project – Providing a list of “hot topics” addressed in recent decisions of the highest courts of each State

In both the Section officers’ and Section members’ calls before the Annual Meeting, we discussed ideas on how the Section can be of assistance to Section members as well as members of other FDCC substantive-law sections. We voted on having a repository of “hot topics” addressed in recent decisions of the highest courts of each State, to be provide by Section members. We are still working on the content, form, and best way to convey this information, whether through the monthly Newsletter, our blog, or another method.

Ideally, we like to provide the information twice a year. Therefore, after providing the first summary of “hot topics,” it would be helpful to update it approximately every six months.

We already have some volunteers, as provided below. Of course, more than one Section member can volunteer for any jurisdiction, so the work can be spread out among two or more members. Please email me if you would like to provide this information from the highest court in your jurisdiction or others. cfrazier@adjtlaw.com

Charlie Frazier, Chair

Jurisdictions

Section member volunteers

California

Laurie Hepler, Bob Olson

Connecticut

Wystan Ackerman

Florida

Angela Flowers

Illinois, Missouri, Indiana

Beth Bauer

Texas

Charlie Frazier

 


 

July 2018

 

Annual Meeting in Maui

Dine around.  As is our custom, there will be Section Dine Around Wednesday evening, August 1. If you are interested in attending, please email Bob Olson, who will be organizing the dinner: rolson@gmsr.com. Bob will provide details on the restaurant and time in a few days.

Joint Presentation with the Trial Tactics Section.  Please plan to attend the Section’s joint presentation with Trial Tactics on Friday, August 3 @ 7:00am. Check the Meeting Schedule pamphlet provided in your meeting packet for the location of the meeting room at the resort.

The presentation topic is Strategic Litigation: How Trial, Appellate, and In-House Counsel Can Together Develop Effective Strategies for Trial and Appeal. Our distinguished panel members are Angela Flowers (appellate perspective); Clark Hudson (trial-attorney perspective); and Tim Pratt (in-house counsel perspective). Bob Olson will serve as moderator. The panel will discuss how an effective integration of the facts and law perspectives of a case can lead to success at trial and on appeal.

Section Project – Providing a list of “hot topics” addressed in recent decisions of the highest courts of each State

In both the Section officers’ and Section members’ calls in the last several weeks, we discussed ideas on how the Section can be of assistance to Section members as well as members of other FDCC substantive-law sections. We voted on having a repository of “hot topics” addressed in recent decisions of the highest courts of each State, to be provide by Section members. We are still working on the content, form, and best way to convey this information, whether through the monthly Newsletter, our blog, or another method. Our next Newsletter will provide these and other details.

In the meantime, please email me if you would like to provide this information from the highest court in your jurisdiction. cfrazier@adjtlaw.com

Charlie Frazier, Chair



JUNE 2018

 

 Annual Meeting in Maui – Joint Presentation with the Trial Tactics Section

The Annual Meeting in Maui is just under six weeks away! There is still time to register and book your flights for the Meeting, hel, July 29-August 3. The Theme is “Strive for the Summit,” meaning to aim to achieve our best in all aspects of life.

Our Section is teaming with the Trial Tactics Section for the presentation:   Strategic Litigation: How Trial, Appellate, and In-House Counsel Can Together Develop Effective Strategies for Trial and Appeal. Our distinguished panel members are Angela Flowers (appellate perspective); Clark Hudson (trial-attorney perspective); and Tim Pratt (in-house counsel perspective). The panel will discuss how an effective integration of the facts and law perspectives of a case can lead to success at trial and on appeal.

The presentation will occur on Friday, August 3, 2018, @7:00am. If you will be at the Maui meeting, we hope you can attend the presentation!

Recent win!

Representing a major financial-services company, Appellate Law Section member Laurie Hepler recently secured reversal of a $1.2 million judgment based on a jury verdict, with the appellate court directing entry of judgment for her client.  The company terminated one of its in-house lawyers, who then sued claiming discrimination and retaliation. The jury rejected all the plaintiff’s claims except for Intentional Infliction of Emotional Distress (IIED), awarding her the seven-figure damages for that tort alone. The California Court of Appeal agreed that, in light of the entire verdict, workers compensation was the exclusive remedy for workplace IIED, and the trial judge should have granted the company’s motion for notwithstanding the verdict.

Congratulations, Laurie!

U.S. Supreme Court Update: Arbitration provisions in employment agreements precluding class-action arbitrations are enforceable.

Wystan Ackerman—immediate past chair of the Section, and currently a vice chair of the FDCC Class Action Section, wrote the following summary of Epic Systems Corp. v. Lewis, issued by the Court on May 21, 2018, for this newsletter.

In Epic Systems Corp. v. Lewis, No. 16-285, the Supreme Court held, in a 5-4 decision authored by Justice Gorsuch, that arbitration provisions in employment agreements which preclude class-action arbitrations are enforceable. The Court held that “[i]n the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.” Slip op. at 2.

The Court rejected the plaintiffs’ argument that the FAA’s savings clause applied, explaining that the savings clause applies only to generally-applicable contract defenses, and that “by attacking (only) the individualized nature of the arbitration proceedings, the employees’ argument seeks to interfere with one of arbitration's fundamental attributes.” Id. at 7. The Court also rejected the plaintiffs’ argument that the arbitration clauses were unenforceable under Section 7 of the National Labor Relations Act, explaining that Section 7 “focuses on the right to organize unions and bargain collectively,” and “may permit unions to bargain to prohibit arbitration,” but “does not even hint at a wish to displace the Arbitration Act—let alone accomplish that much clearly and manifestly, as our precedents demand.” Id. at 11. The Court also noted that modern class and collective action proceedings were not created until 1966, long after the NLRA was enacted in 1935. Id.

Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor and Kagan. The dissent would have held that Section 7 of the NLRA governed and precluded enforcement of the arbitration clauses at issue. The dissent characterized arbitration provisions with class-action waivers in employment contracts as similar to the “yellow-dog contracts” that the NLRA was intended to address. Justice Ginsburg wrote that “[e]mployees’ rights to band together to meet their employers’ superior strength would be worth precious little if employers could condition employment on workers signing away those rights." Slip op., dissent at 17. With respect to the FAA, the dissent stressed that the FAA was intended “to enable merchants of roughly equal bargaining power to enter into binding agreements to arbitrate commercial disputes.” Id. at 19. The dissent would have found the savings clause in the FAA applicable because “[i]llegality is a traditional, generally applicable contract defense,” and the dissent found the arbitration clauses illegal under the NLRA. Id. at 24. The dissent noted that, in its view, the majority’s decision should not apply to Title VII of the Civil Rights Act of 1964 and other employment-discrimination laws. Id. at 29.

You can review other Supreme Court decisions related to class actions on Wystan’s blog:  www.classactionsinsider.com   - Charlie Frazier, Chair



 

May 2018

Submitted by: Charles T. Frazier, Jr.

 

Recent win!

 

Section member Stephen Feldman of Ellis & Winters in Raleigh, NC, recently won a dismissal of antitrust case for his healthcare client.  The plaintiffs were North Carolina chiropractors who alleged that multiple payors of health-care services (including large insurers) unlawfully colluded with an independent practice association to depress the supply of chiropractic care in North Carolina.  The North Carolina Business Court concluded that the plaintiffs had not adequately defined a relevant market in which to measure any anticompetitive effect.  The plaintiffs have appealed the case to the North Carolina Supreme Court.

Congratulations, Stephen!

 

Annual Meeting in Maui – Joint Presentation with the Trial Tactics Section

 

Registration has opened for the Annual Meeting will be in Maui, July 29-August 3. The Theme is “Strive for the Summit,” meaning to aim to achieve our best in all aspects of life.

 

Our Section is teaming with the Trial Tactics Section for the presentation:   Strategic Litigation: How Trial, Appellate, and In-House Counsel Can Together Develop Effective Strategies for Trial and Appeal. Our distinguished panel members are Angela Flowers (appellate perspective); Clark Hudson (trial-attorney perspective); and Tim Pratt (in-house counsel perspective). The panel will discuss how an effective integration of the facts and law perspectives of a case can lead to success at trial and on appeal.

 

The presentation will occur on Friday, August 3, 2018, @7:00am. If you will be at the Maui meeting, we hope you can attend the presentation!

 


 

March 2018

Submitted by: Charles T. Frazier, Jr.

 

(Click here to download a .pdf of this section update)

 

Section Meeting Conference Call.

On February 19, 2018, we had a Section Meeting by conference call. Here are the issues we discussed and decisions made:

 

  • Section goals. One of the primary goals, and purpose, of the Section is to be even more involved and have higher visibility with the other substantive law sections, at least 22 are litigation related. Trial attorneys often seek appellate lawyers to assist them with legal issues, briefing, and pre-trial, trial, and post-trial strategy. All members are encouraged to join and engage in the other sections.

We discussed several ideas to foster this goal:

o   Prepare a nationwide survey of unique appellate practices from state to state

--  E.g., what interlocutory orders are appealable in each state?

--  How state trial and appellate procedures differ from the national baseline.

o   Offer to assist with presentations of other sections.

 

  • Insights articles. Members are encouraged to contact the Section officers with ideas for Insights articles, or even better volunteer to draft an article. Insights articles present in-depth legal analysis on topics that can be exclusively appellate-procedure related or on the law regarding substantive topics. The articles are generally 3000-5000-words long. We will know soon the months that our Section is assigned. One member has already presented an article for the next assigned month, so we need only one more in the future!

 

  • Section Newsletters. Section Newsletters present a tremendous opportunity for Section members to share information about a recent win or an interesting legal issue with which they recently dealt with. So PLEASE send you information each month for the Newsletter. I need to have the information by the 10th of the month. Also, we will make sure each member has the link to the FDCC monthly Newsletter, including our Section Newsletter.

 

  • Bi-month Section meetings.  We agreed to have bi-monthly meetings. The meetings will be held on the third Monday of the month around noon Central Time. Each member will soon receive a calendar invite with all the necessary information. A reminder will be sent about a week before each meeting that will provide an agenda that will include a member sharing a little about themselves, their practice, etc., as well as a story about a recent case with tantalizing facts and issues. We will also highlight new members and discuss any amicus requests.

 

 

Amelia Island Meeting a great success.

 

 Those who attended the Winter Meeting at Amelia Island will attest that the entire event was tremendous in every way: wonderful opportunities to catch up with friends and meet new ones; superb speakers and programs; delicious food; beautiful setting; and fun and diverse activities.

 

Likewise, the joint presentation by our Section and the Extra-Contractual Liability Section was a great success. Over 40 attended the panel discussion on “Establishing Favorable Appellate Precedent for Bad Faith Litigation.” We had a lively and thought-provoking discussion with the audience with lots to chew on and think about in our pending and future bad-faith cases. Many thanks to our panel: Laurie Hepler, Scott Hofer, and particularly to Jennifer Eubanks, who graciously agreed to fill in for Vicki Roberts, who was unable to attend.

 

Several other Section members were involved in other Section-meeting presentations. Wystan Ackerman was a panel member at the Employment and Class Action meeting on: “Employment and Class Action: ‘Hold on, Class, It’s Not Time To Waive Goodbye Just Yet!’” Jennifer Eubanks spoke at the “Masters in Marketing” presentation, and she and Charlie Frazier served on the panel in the Insurance Coverage and Reinsurance, Excess and Surplus Lines meeting on “Intervention, DJ, or Nothing: What’s an Insurer to do to Resolve Coverage Issues?” I am sure there were others who gave presentations or otherwise were greatly involved at the Winter Meeting. Many thanks to all of you!

 

 

Annual Meeting in Maui.

 

 The Annual Meeting will be in Maui, July 29-August 3. The Theme is “Strive for the Summit,” meaning to aim to achieve our best in all aspects of life. Our Section is teaming with the Trial Tactics Section to give a presentation how in-house counsel, trial counsel, and appellate counsel can work together to create the best circumstances for an effective trial and effective appeal. Angela Flowers will represent the appellate-lawyer perspective on the panel. More details will follow.

 

 

2019 Winter Meeting in Austin.

 

 Finally, we discussed the 2019 Winter Meeting that will be held in Austin, Texas on March 24-28, 2019. The Topic is “Creative Ingenuity.”  We have been asked to think about potential presentation ideas for this Meeting. One idea that was discussed:

 

Have a practitioners’ discussion of how to prepare for oral argument—for crucial hearings in trial courts and oral arguments in appellate courts.

 

o   How can ideas and methods of preparation of other practitioners help others to make a

     difference in the success of oral argument.

o   Innovate to give better presentations.

o   Share the experiences of different advocates to help take one’s practice to the next level. 

 

 


 

 

January 2018
Submitted by:  Charls T. Fraizer, Jr.

 

Happy New Year! I hope everyone had a nice Holiday and a good beginning to 2018.

 

Amelia Island Winter Meeting. Registration is open. Please register as soon as possible, as activities are filling up! And please plan to attend the joint presentation by our Section and the Extra-Contractual Liability Section on Monday, February 26, which will address Establishing Favorable Appellate Precedent for Bad-Faith Litigation. Presenters are Vicki Roberts, Laurie Hepler, and Scott Hofer.


Welcome New Member, Tillman Breckenridge.

 

The Appellate Law Section plans to periodically profile of one its members in its monthly Newsletter to help Section members and others in the FDCC better know who we are.

 

This month, we welcome the Section’s newest member, Tillman Breckenridge. Tillman is a Partner in Bailey & Glasser LLP's Washington, D.C. office, and concentrates his practice on appellate litigation at all levels. He has represented individuals, companies, organizations, and foreign, state, and local governments before the United States Supreme Court, every U.S. Court of Appeals, and many state appellate courts. Tillman's practice includes appeals in all substantive practice areas, including high-profile cases in insurance coverage, and work on patent, tax, regulatory, and commercial business appeals. He is the Immediate Past Chair of DRI's Appellate Advocacy Committee and serves on the Board of Directors of the National Foundation for Judicial Excellence.


Additionally, Tillman is an Adjunct Professor of Law at the William & Mary School of Law, where he founded and directs the Appellate and Supreme Court Clinic. The Clinic has filed briefs that have been profiled as the National Law Journal Brief of the Week, relied on by the Supreme Court, and led to critical precedents in civil rights cases.

Tillman has been named to the Washington, DC Super Lawyers and Virginia’s Legal Elite lists for appellate practice, and was named one of the National Bar Association’s 40 Trailblazers Under 40 in 2014. Tillman is AV rated in Martindale-Hubbell. I have had the pleasure of knowing Tillman for many years, and he will be an excellent addition to the FDCC and our Section.

 

Tillman, welcome to the FDCC and the Appellate Law Section! We are happy you have joined us!

 


 

 

December 2017

Submitted by: Charles T. Frazier, Jr.

 

Amelia Island Winter Meeting registration is now open! Please register as soon as possible, as activities are filling up!

 

 

I hope everyone had a nice Thanksgiving and is enjoying the Holiday Season. Periodically, the Appellate Law Section Newsletter will provide a summary of a recent appellate-court decision or a new rule or statute that impacts both trial and appellate practice.

 

To this end, this Newsletter provides an excellent summary of a very recent Supreme Court decision addressing the timeliness of a notice of appeal under the Federal Rules of Appellate Procedure, which provides principles that may also apply to perfecting appeals in state courts. The article was provided by Wystan Ackerman, the immediate past Chair of the Section, and written by Jonathan Small, an associate at Wystan’s firm, Robinson + Cole. The article appears in one of the firm’s blogs: https://www.massappellateblog.com/2017/11/u-s-supreme-court-to-appellant-time-is-on-your-side/.

________________________

 

U.S. Supreme Court to Appellant – Time Is On Your Side

 

We have written previously on this blog about the importance of a timely notice of appeal in the Massachusetts Appeals Court. The issue bears revisiting in the federal courts following the decision by the United States Supreme Court in Hamer v. Neighborhood Housing Services of Chicago, No. 16-659 (November 8, 2017).

Justice Ginsburg, in her characteristic trenchant prose, introduced the issue in Hamer as follows:

 

This case presents a question of time, specifically, time to file a notice of appeal from a district court’s judgment.

 

The decision then distinguished between restrictions on subject-matter jurisdiction, such as the time limitations imposed by 28 U.S.C. § 2107(c), and “mandatory claim-processing” rules, such as the time limitations imposed by Federal Rule of Appellate Procedure 4(a)(5)(C). Ultimately, the Court ruled that, unlike the jurisdictional rules established by Congress, the claim-processing rules that set forth time limitations, such as those found in Rule 4(a)(5)(c), do not implicate a court’s subject-matter jurisdiction, and can be waived or forfeited.

 

Hamer involved an appellant whose employment discrimination suit was dismissed by the district court on summary judgment. After the judgment of dismissal was entered, her counsel filed a motion to withdraw and a motion for an extension of the appeal filing deadline, to give the appellant sufficient time to find new counsel for the appeal. The district court granted both motions, allowing a 60-day extension of the appeal deadline, even though Rule 4(a)(5)(C) confines such extensions to 30 days.

 

Addressing the issue sua sponte, the Seventh Circuit Court of Appeals concluded that the 30-day time limitation in Rule 4(a)(5)(C) is jurisdictional, and the district court’s extension of time beyond that allotment was therefore ineffectual. On that basis, the court dismissed the appeal.

 

The Supreme Court reversed. Acknowledging that earlier opinions by the Court “have sometimes overlooked th[e] distinction” between jurisdictional limitations and claim-processing rules or elements of a cause of action, Justice Ginsburg explained that “a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time.” These provisions cannot be waived or forfeited and may be raised at any time, including sua sponte, by the reviewing court.

 

By contrast, claim-processing rules, which serve to promote the orderly process of litigation by prescribing certain procedural steps at specified times, are not set by Congress and do not invoke the subject-matter jurisdiction of the Court and may be waived or forfeited.

 

Rule 4(a)(5)(C) is a claim-processing rule. It provides:

 

No extension [of time for filing a notice of appeal] under this Rule 4(a)(5) may exceed 30 days after the prescribed time [for filing a notice of appeal] or 14 days after the date when the order granting the motion is entered, whichever is later.

 

Fed. R. App. P. 4(a)(5)(C). Significantly, this time limitation does not appear in 28 U.S.C. § 2107(c), which provides:

 

(c) The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause. In addition, if the district court finds—

 

(1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and

 

(2) that no party would be prejudiced,

 

the district court may, upon motion filed within 180 days after entry of the judgment or order or within 14 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

 

28 U.S.C. § 2107(c).

 

The statute does not state how long an extension for “excusable neglect or good cause” may run.

 

Because Rule 4(a)(5)(C) is the only source of the 30-day limitation on extensions of the appeal period for “excusable neglect or good cause,” it is not jurisdictional and can be waived or forfeited. Accordingly, the Seventh Circuit erred when it held that the appeal was jurisdictionally barred as untimely.

 

Hamer provides a helpful discussion of the jurisdictional and rules-based authority of federal appellate courts. In this case, the appellant may have avoided the loss of her appeal rights, but the decision also underscores the importance of understanding the appeal process following a judgment entered by the trial court.

________________________

 

Many thanks to Wystan for this fine article!

 

 

 


 

 

 

November 2017

 

Winter Meeting at Amelia Island

 

The Winter Meeting is shaping up. Registration will open November 27. We are encouraged to register early, as activities and rooms fill up quickly. The post-Meeting trip to Cuba is on! Details are forthcoming, but space is limited, so if you are interested please register on or soon after November 27.

 

The joint presentation by our section and the Extra-Contractual Liability Section will occur on Monday, February 26, at 7:45am. The program title is “Reversal of Misfortune: How to Establish Favorable Precedent Affecting Bad Faith Litigation.” The presentation will develop an understanding of the benefits of employing a proactive approach creating favorable precedent, under which emerging insurance bad-faith issues are identified early and an active trial and appeal strategy is pursued in cases with the best facts and in the best jurisdictions.  We have an esteemed panel representing the interests involved in forming this strategy:  Vicki Roberts (insurer in-house counsel), Laurie Hepler (appellate counsel), and Scott Hofer (trial counsel).

 

Please block your calendars for the presentation as well as the entire Meeting—Feb. 25-28, 2018.

 

 

The U.S. Supreme Court’s new electronic filing system

 

 At the Charleston Winter Meeting in March, our Section presented Writing in the Electronic Age, addressing how we need to modify our legal writing for the screen reader because most courts require electronic filing—most courts except the U. S. Supreme Court, that is.

 

But that has changed! On November 13, 2017, the Supreme Court has joined the electronic age when the Court’s electronic filing system (EFS) became effective. Now, any party or amicus curiae represented by an attorney in the Supreme Court must submit filings through the EFS during both the certiorari and merits stages of an appeal. Further, the list of submissions (e.g., certiorari petitions; briefs) included in the Court’s online docket for each case will be hyperlinked, and thus, just a click away to any attorney or member of the public.

For a summary of the EFS and steps on registering and filing documents, please click here to read.

 

 

 

October 2017

 

The Appellate Law Section plans to periodically profile of one its members in its monthly Newsletter to help Section members and others in the FDCC better know who we are.

 

This month, we welcome the Section’s newest member, Melinda S. Kollross. Melinda is a senior partner and Co-Chair of Clausen Miller's Appellate Practice Group in Chicago, handling trial-monitoring and post-trial and appellate litigation for clients nationwide. Licensed in Illinois and New York, Melinda has handled more than 150 appeals in state and federal appellate courts, including participation in two cases before the United States Supreme Court. Her practice includes commercial litigation, first-party property, liability-insurance coverage and liability defense.

 

Melinda has been actively involved in DRI’s Appellate Advocacy Committee. She wrote a chapter on post-trial motions in A Defense Lawyer’s Guide to Appellate Practice, published by the DRI in 2004. She also has authored two feature articles published in For The Defense, titled: “Oral Argument: What It Really Takes To ‘Please the Court,’” and “Evaluating, Negotiating and Effectuating Settlements on Appeal.” Melinda recently served as the DRI Appellate Advocacy Committee’s 2017 Annual Meeting Chair, and moderated a panel discussion at the Annual Meeting, titled “Perspectives on the Appellate Practitioner’s Role at Trial and on Appeal: A View from the Plaintiff, the Defense, and the Court,” which featured sitting Illinois Supreme Court Justice Rita Garman as a panelist.

 

Melinda enjoys spending time with her two daughters, Alyssa (9) and Kristina (5) (pictured below), and her hobbies include exercising, fine art and fine dining, and exploring the great outdoors.

 

Melinda, welcome to the FDCC and the Appellate Law Section! We are happy you have joined us!

 

 

SEPTEMBER 2017

 

Continuing the theme of the Appellate Law Section’s joint presentation with the International and Commercial Litigation Sections, London-based Section member Stephen Carter has provided an article he helped finalized that was prepared by his colleague, Bernadette Bailey. The article addresses how European courts have addressed English jurisdiction clauses in insurance policies, and whether English courts can or should apply those decisions in cases pending in the UK in light of Brexit and the recently passed Repeal Bill by the British Parliament.

 

English Jurisdiction Clauses in Insurance Policies – The European Court’s View

CLICK HERE to read.

 

 

 

AUGUST 2017

 

Montreux Meeting – July 2017

As advertised, the joint presentation at the Montreux Meeting by the Appellate Law, International, and Commercial Litigation Sections generated robust discussion regarding several issues confronting the European Union Member States, the United Kingdom, and the United States. At least five countries were represented on the panel and in the audience, collectively. Lead by moderator Bill Vita, the most spirited exchange of views concerned the effect of Brexit on commercial litigation and enforcement of judgments. With the ink barely dry from “The Great Repeal Bill” that will be debated in the UK Parliament this Autumn, Stephen Carter gave the UK perspective on whether EU law, including precedent by the European Court of Justice, will apply in disputes filed in the UK after Brexit, among other issues. Jorge Angell provided stimulating counter-perspectives from the EU in general, and Spain in particular. Several audience members from other countries weighed in with insightful comments.

 

As a type of counter to the uncertainties facing future litigation in the EU and UK, Stephen Brake and Charlie Frazier presented a summary of key aspects and differences of the US judicial system at both the trial and appellate level. They focused on the consistent and well-settled aspects of that system and how they differ with the other jurisdictions. These differenced include the fundamental right to a jury trial and appeal as a matter of right in the US, followed by a frank discussion of the relatively higher cost of and greater length of time to resolve suits filed in the US. 

 

Amelia Island Meeting – February 24-28, 2018

 

Planning for the Section’s substantive-law presentation at the Amelia Island Meeting is well underway, with the topic, content, and panel essentially finalized. We will be joining with the Extra Contractual Liability Section to present

“Creating Favorable Precedent in Bad-Faith Litigation.”

 

The ultimate goal of the presentation will be to develop an understanding of the benefits of employing a proactive approach in creating favorable precedent, under which emerging issues are identified early and an ­active trial and appeal strategy is pursued in cases with the best facts and in the best jurisdictions. The discussion will focus on the roles played by in-house, trial, and appellate counsel in coordinating strategy by identify­ing, developing, and preserving the best arguments in the trial courts, issue selection and posturing on appeal and aggressively seeking settlement to avoid establishing bad precedent in prob­lem cases—cases with bad facts, in a problematic jurisdiction, or that did not present or preserve the best arguments.

 

Providing the in-house counsel point of view will be FDCC Past President Vicki Roberts, Vice-President and Counsel of Meadowbrook Insurance Group. Joining Vicki will be a bad-faith-litigation specialist and an appellate specialist, to be named soon.

 

You will not want to miss this one!

 

 

JULY 2017

 

The FDCC Appellate Law Section would like to remind our members of the program that we will present at the upcoming Annual Meeting in Montreaux, Switzerland. On the heels of the surprising general election in the U.K., and commensurate with the international flavor of the Annual Meeting in Montreux, our section and the Commercial Litigation and International Sections will present an international panel of attorneys who will address current issues of importance and interest. The panel- and audience-interactive discussion will address: (1) Brexit, including the procedural aspects of the rights of EU citizens living in Great Britain; (2) enforcement of judgments in the EU and Britain; (3) differences in discovery practice between Europe and the U.S.; and (4) differences in trials and appeals between the U.S. and Europe.


Our program will occur on Thursday, July 27 at 7:45 a.m. in the Salon de Musique. Please check the on-site brochure to locate this meeting room. The moderator will be Bill Vita of Westerman Ball et al. in Uniondale, NY. The panel members are Jorge Angell of L.C. Rodrigo Abogados in Madrid; Stephen Carter of Carter Perry Bailey LLP in London; Stephen Brake of Nutter McClennan & Fish in Boston; and Charlie Frazier of Alexander Dubose Jefferson & Townsend in Dallas.


We would also like to congratulate Charlie Frazier, who has been appointed as chair of our section for the 2017-2018 FDCC year. If you would like to become more involved in our section in the coming year, please reach out to Charlie at cfrazier@adjtlaw.com.

 

 

JUNE 2017

 

On the heels of the surprising general election in the U.K., and commensurate with the international flavor of the Annual Meeting in Montreux, our section and the Commercial Litigation and International Sections will present an international panel of attorneys who will address current issues of importance and interest. Among the topics: (1) the differences in litigating in Continental Europe, the U.K., and the U.S., with emphasis on pre-trial discovery, admission of evidence, and trials by jury vs. trials by the judge; (2) how judgments are enforced in E.U. member states; and (3) where does the U.K. now stand in terms of attempting to retain certain aspects of E.U. membership, including the application of critical E.U. laws and procedural rules pertinent to commercial litigation.


Our program will be on Thursday, July 27 at 7:45 a.m. Check your on-site brochure for location information. The moderator will be William Vita of Westerman Ball et al. in Uniondale, NY. The speakers include Jorge Angell of L.C. Rodrigo Abogados in Madrid, Spain, Stephen Carter of Carter Perry Bailey LLP in London, Stephen Brake of Nutter McClennan & Fish in Boston, and Charlie Frazier of Alexander Dubose et al. in Dallas.

 

 

APRIL 2017

 

At the Winter Meeting in Charleston, our section hosted a “dine around” dinner at which we welcomed new member Laurie Hepler of Greines, Martin, Stein & Richland LLP, an appellate firm in San Francisco. We also had a very strong turnout for our CLE program, “Legal Writing for the Electronic Age.” Charlie Frazier, Bob Olson, Mike Aylward and Justice John Few of the South Carolina Supreme Court presented some great tips on how to make your briefs more persuasive and easier to read for judges and law clerks who are reading them on electronic devices. For those who were unable to make it to Charleston, or those who would like more information on this topic, Charlie put together a great paper, which is available by following this link, starting at page 456. The paper has a number of links to other excellent resources on this topic. Take a look and learn how to make your legal writing easier to skim and navigate on an electronic device, and use more visible structures and visual aids. If you would like a copy of the Powerpoint, please email Charlie at cfrazier@adjtlaw.com.

 

For the upcoming Annual Meeting in Montreaux, Switzerland, the Appellate Law Section will be joining with the Commercial Litigation Section to present a program on “A Comparison of Commercial Litigation in Europe and North America.” The program will discuss how commercial litigation differs on both sides of the pond and will focus on what American attorneys should know when advising their clients regarding business dealings in Europe. Panelists will include William Vita, Jorge Angell, Stephen Brake, Stephen Carter, and Charlie Frazier.

 

If you are interested in writing a FDCC blog post (a short article published online) on an appellate law topic, please email Wystan Ackerman at wackerman@rc.com

 

 

 


more Calendar

7/25/2020 » 8/1/2020
2020 FDCC Annual Meeting

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Charles MeyerO'Hagan Meyer, PLLC, Richmond, VA

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