Appellee Strategies in the pp g Federal Courts of Appeal Leveraging - - PowerPoint PPT Presentation

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Appellee Strategies in the pp g Federal Courts of Appeal Leveraging - - PowerPoint PPT Presentation

Sep 04, 2023 555 likes •796 views

Presenting a live 90 minute webinar with interactive Q&A Appellee Strategies in the pp g Federal Courts of Appeal Leveraging Appellate Waivers, Cross Appeals, and Other Proactive Tactics in Civil Appeals TUES DAY, JULY 23, 2013 1pm

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Presenting a live 90‐minute webinar with interactive Q&A

Appellee Strategies in the pp g Federal Courts of Appeal

Leveraging Appellate Waivers, Cross‐Appeals, and Other Proactive Tactics in Civil Appeals

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUES DAY, JULY 23, 2013

Today’s faculty features:

Anne M. Johnson, Partner, Haynes and Boone, Dallas Andrew Tuck, S enior Associate, Alston & Bird, Atlanta Kyle G.A. Wallace, Partner, Alston & Bird, Atlanta Kyle G.A. Wallace, Partner, Alston & Bird, Atlanta

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APPELLEE STRATEGI ES I N THE FEDERAL COURTS OF APPEAL FEDERAL COURTS OF APPEAL

Anne Anne M. J

  • M. Johnson

hnson

Haynes and Boone, LLP

D TX

And Andy Tu Tuck ck

Alston & Bird, LLP

A GA Dallas, TX anne.johnson@haynesboone.com Atlanta, GA andy.tuck@alston.com

Kyle G Kyle G.A.

  • A. W

alla llace ce

A & B LLP Alston & Bird, LLP

Atlanta, GA kyle.wallace@alston.com

Jul July 23 23, 2 , 2013 13

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R l R ( 2 0 1 2 ) Reversal Rates ( 2 0 1 2 )

Circuit Percentage of Civil Cases Decided on Merits Civil Reversal Rate

All 57.3% 11.4% DC 68.8% 12.1% First 59.1% 10.2% Second 52.7% 6.4% Third 61.5% 11.3% Fourth 70.7% 6.2% Fifth 61.5% 14.7% Fifth 61.5% 14.7% Sixth 57.0% 13.5% Seventh 54.2% 14.6% Eighth 73.2% 8.9% Ninth 54.8% 14.8% Tenth 59 3% 6 6% Tenth 59.3% 6.6% 1 1 th 45.5% 12.6%

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F Pill f Affi Four Pillars of Affirm ance

  • Preservation of Error
  • Standards of Review
  • Standards of Review
  • Harmless Error
  • Stare Decisis

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Snatching Defeat From the Jaw s of Victory

R l l l f ill f ffi

  • Rely solely on four pillars of affirmance.
  • Stick to the issues framed by Appellant
  • Stick to the issues framed by Appellant

and take a purely defensive posture.

  • Ignore the “right for any reason” rule, and

fail to offer alternate ways to the same result. result.

  • Miss the opportunity to file a cross appeal.

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Standard Appellee Strategy Standard Appellee Strategy

Receive Appellant’s Brief

Outline Appellant’s Arguments

Outline Appellant s Arguments

Attack Each Argument g

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Trap for the Unwary Appellee Trap for the Unwary Appellee

“Ri h F A R ” l ll

“Right For Any Reason” rule – an appellee can argue that the decision below should be affirmed for any reason supported by the y pp y record B t h t b t i hi h th ll

But what about issues on which the appellee lost?

What about issues the court below ignored?

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Two Competing Principles Two Competing Principles

Judicial efficiency – especially in the summary-

Judicial efficiency especially in the summary judgment context, appellate courts rule whether there is an issue of material fact for trial, and should grant summary judgment if there is not, even if the g y j g lower court applied incorrect reasoning.

Appellate Courts Review – appellate courts should

Appellate Courts Review appellate courts should not be in the business of looking at new issues that have not already been addressed; they should correct errors in lower court opinions, and not render p , judgments on issues for which there is no ruling.

City of Gainesville v Dodd 573 S E 2d 369 (Ga

City of Gainesville v. Dodd, 573 S.E.2d 369 (Ga. 2002) – splintered 2-2-3 opinion

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Right For Any Reason – If Not Argued? Right For Any Reason – If Not Argued?

Appellee Waiver – issues not raised in the response

Appellee Waiver issues not raised in the response brief will, in many courts, not be reviewed under the right-for-any-reason rule

Hamilton v. Southland Christian School, 680 F.3d 1316, 1318-19 (11th Cir. 2012). “[ ] f h ldb h d

“[ a] woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired—in that order. Then she filed a lawsuit She lost on summary she filed a lawsuit. She lost on summary judgment.”

Hosanna-Tabor Evangelical Lutheran Church & School v Equal Employment Opportunity School v. Equal Employment Opportunity Commission, 132 S.Ct. 694, 706 (2012).

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Federal Circuits – Appellee Waiver Federal Circuits Appellee Waiver

7 h 10 h d 11 h Ci i ll

7th, 10th and 11th Circuits: appellee waiver, like in the 11th

4th Circuit – Judge Hamilton has dissented and urged application of an appellee-waiver l rule

2d, 4th, 5th and 6th Circuits – have refused

2d, 4th, 5th and 6th Circuits have refused to apply appellee waiver

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Nightmare Appellee Waiver Scenario Nightmare Appellee Waiver Scenario

Subsequent appeal – Hamilton v Southland

Subsequent appeal Hamilton v. Southland Christian School goes back to the trial court, and Hamilton wins a sizeable jury verdict.

What happens in the subsequent appeal?

Third, Eighth, District of Columbia (D.C.), and Federal Circuits have all rejected attempts to argue that a party has waived an argument in a second appeal by not raising it in the first appeal. g pp

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W hen is a cross-appeal required?

  • An appellate court may not alter a judgment to

pp y j g benefit a non-appealing party.

  • A cross appeal is necessary and proper only when the

appellee wants the appellate court to alter the judgment (the bottom line, not the grounds or reasoning) of the district court.

  • Examples:
  • Seeking to enlarge or reduce damage award
  • Seeking enhanced or punitive damages
  • Seeking or challenging attorneys’ fees
  • Seeking to enlarge or reduce prejudgment
  • Seeking to enlarge or reduce prejudgment

interest

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W hen is a cross-appeal im proper?

  • "It is more than well-settled that a party cannot
  • It is more than well settled that a party cannot

appeal from a judgment unless 'aggrieved' by it.... Simply stated, a party who has obtained a judgment in his favor, granting the relief sought, is not , g g g , aggrieved by it. A cross-appeal filed for the sole purpose of advancing additional arguments in support of a judgment is 'worse than unnecessary', because it disrupts the briefing schedule, increases the number (and usually the length) of briefs, and tends to confuse the issues.... Such arguments h ld i t d b i l d d i th ll ' should, instead, be included in the appellee's answering brief. “

  • In re Sims, 994 F

.2d 210, 214 (5th Cir. 1993).

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C A l P Cross-Appeals: Pros

  • Creates jeopardy for the Appellant

Implicitly suggests an appellate

  • Implicitly suggests an appellate

compromise

  • Provides the appellee an additional

brief

  • May encourage settlement on appeal

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C A l C Cross-Appeals: Cons

  • Puts you in the awkward position of

y p defending the lower court on some points while attacking it on others M di f h i f f

  • May distract from the primary focus of your

appellate brief – affirm the lower court decision

  • Complicates an appeal that is otherwise easy

to beat

  • Calls court’s attention to subtleties or

complexities that you would prefer not to highlight highlight

  • May make your client look greedy

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H h i l # 1 Hypothetical # 1

District Ct. grants summary judgment for Defendant g y j g

  • n ground A, and does not address grounds B or C.

Plaintiff appeals asserting that SJ on ground A was

Plaintiff appeals, asserting that SJ on ground A was erroneously granted. Sho ld Defendant/ Appellee aise g o nds B and C as

Should Defendant/ Appellee raise grounds B and C as alternative grounds for affirming the SJ?

If Defendant/ Appellee does not raise those grounds, has he waived them?

Does Defendant/ Appellee need to file a notice of cross-appeal?

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H h i l # 2 Hypothetical # 2

District Ct. dismisses Claim A and submits Claim B to

  • jury. Jury returns verdict in favor of Plaintiff on Claim

B. A ll t/ D f d t th t j

Appellant/ Defendant argues that an erroneous jury instruction on Claim B requires a new trial.

Appellee/ Plaintiff argues that the jury instructions

Appellee/ Plaintiff argues that the jury instructions were correct, but if Claim B is remanded, Claim A should also be retried.

Was Appellee required to file a notice of cross-appeal?

If Appellee never mentioned Claim A on appeal, could pp pp , he have raised it on remand?

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H h i l # 3 Hypothetical # 3

Appellant’s statement of facts and issues

Appellant s statement of facts and issues presented are correct and complete.

Appellant’s arguments are logically presented.

Should appellees always submit their own version of the facts and issues presented? p

Should appellees structure their argument to correspond directly to appellant’s brief? correspond directly to appellant’s brief?

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Fi l Ti f A ll Final Tips for Appellees

Don’t fo get o initial eactions hen

Don’t forget your initial reactions when you first read the appellant’s brief.

Don’t rely on your jury argument. l i h b d f

Deal with bad facts.

Highlight the lower court decision

Highlight the lower court decision.

Help the court of appeals write its opinion.

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