1.0 Law & Legal CLE Credit A/V Approval # Recording Date - June 11, 2018 Recording Availability October 19, 2018

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1 1.0 Law & Legal CLE Credit A/V Approval # Recording Date - June 11, 2018 Recording Availability October 19, 2018 Meeting Location Date Time Topic King County Bar Association 1200 Fifth Avenue - Suite 700 Seattle, WA Monday, June 11, :00 PM to 1:15 PM How to Use an Appellate Consultant AGENDA 12:10 PM Presentation: How to Use an Appellate Consultant, by Justice Faith Ireland (ret.), Just Results and Matt Segal, Pacifica Law Group How working with an appellate consultant can increase your chances of prevailing on appeal How to select the consultant and specific services that will best meet the needs of your case The types of advice and assistance consultants provide at the various stages of an appeal Some tips and guidance from a highly experienced appellate consultant and former Washington Supreme Court Justice 1:15 PM Adjourn SPEAKER BIOGRAPHY Justice Faith Ireland (ret.), Just Results Justice Faith Ireland (ret.), owner of JUST RESULTS, is a mediator, arbitrator, and consultant to lawyers. She is a retired Washington State Supreme Court Justice. She served 21 years as a trial judge and justice, following a career as a pioneering female litigator. She was the first female officer of WSTLA (now WSAJ). She was a founding member of WWL She was named Judge of the Year by WSTLA and was the first female President of the Superior Court Judges Association. She received her BA in political science from the University of Washington; was one of two women graduated from Willamette University Law School in 1969; and received her MS Taxation with honors from Golden Gate University in She has served on many boards and commissions and has received many recognitions and honors for her professional and community work. While on the Supreme Court she became an international competitive powerlifter. She set 15 world records for her

2 age and weight and retired from competition in She still enjoys the gym and skiing with her husband. Matt Segal, Pacifica Law Group Matt Segal has represented the interests of public and private clients in the Northwest for more than fifteen years. Matt is a founding partner of Pacifica Law Group. Prior to the founding of Pacifica, Matt was a partner at K & L Gates, an associate at Preston Gates & Ellis, and a clerk for the Washington Supreme Court. Matt litigates and consults on a wide range of appellate, constitutional and public policy matters, including public records and open meetings.

3 HOW DO I EARN CREDIT FOR SELF-STUDY OR AUDIO/VISUAL (A/V) COURSES? For pre-recorded A/V (self-study) programs, although the sponsor should apply for accreditation, lawyers need to report the credits earned for taking the course. To add an approved course to your roster, follow the procedures below: Go to the "mywsba" website at Log in. Click on the "Access MCLE" link in the "MCLE Info" box on your home profile page. Click on "Add Activity." Search to find the approved course in our system. (See search suggestions on the screen.) Adding a Recorded Course Select Recorded Course from the Add New Activity screen. This will prompt you to search for the activity in case the activity has already been accredited in the MCLE system. You can search by Activity ID or by specific Activity Details. For the Activity Details search, you can use keywords for the title, sponsor name and date. After entering your search criteria and selecting Search at the bottom of the screen, a list of possible activities will be provided. You can select the correct one by clicking the Activity ID. This will take you to the specific activity. Entered the date(s) on which you began and ending viewing this recorded activity. Then claim the correct credits for which you attended this activity in the Credits Claimed fields and click the Submit button at the bottom of the page. You will receive a confirmation message at the top of your screen stating, The activity has been added to your roster.

4 JUNE 2018 APPELLATE PRACTICE SECTION How to Use an Appellate Consultant June 11, 2018 Justice Faith Ireland Matthew J. Segal Just Results Sarah C. Johnson Pacifica Law Group LLP

5 Justice Faith Ireland (Ret) Just Results Pioneering female litigator 13 years Trial Judge, King County Superior Court 15 years Supreme Court Justice, 6 years Mediator, Arbitrator and Appellate Consultant since 2005.

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7 PREPARATION INCREASES YOUR CONFIDENCE JUDGES LEARNING YOUR EFFECTIVE ANSWERS

8 DON T GET GREEDY ASK ONLY FOR WHAT YOU NEED

9 Tailor the Requested Relief What is the Significance of your case? Does it affect 2 parties or broad PUBLIC POLICY? Do you want a profound CHANGE in the law? Are you raising CONSTITUIONAL issues? Might there be UNINTENDED consequences?

10 3 THINGS THE JUDGE WANTS TO FIND THE CORRECT LAW TO WRITE A GOOD OPINION TO DO JUSTICE

11 Drafting and Editing Briefs Distillation is key Cite COMPELLING authority Edit, edit, edit Do not edit all in one swoop Multiple sets of eyes are best

12 EDITING IS EVERYTHING

13 Oral Argument Most important part of your argument: Very first and last statement Choose critical facts and law to highlight for the justices. Be prepared for the court s questioning

14 APPELLATE MYTHS A CONSULTANT CAN HELP YOU OVERCOME

15 Pacifica Law Group LLP Pacifica provides a broad range of appellate services: Handling appeals from start to finish Acting as appellate co-counsel Drafting amicus briefs Evaluating the merits of a potential appeal Assisting in drafting or reviewing a brief Helping to prepare counsel for oral argument Working with trial counsel to preserve issues for appeal

16 The brief is already written! A trial court brief is not an appellate brief Key differences: error or policy driven, standard of review, panel perspective, law clerks Why are the stakes different on appeal? Hone themes and structure of arguments Allow time to incorporate feedback Consider amicus support

17 We won this case once, so what do we have to worry about? Why and how did you win? Will that carry over? Were mistakes made?

18 I am the top expert on my own case Know what you don t know You ve counted every tree, but can see you the forest? Outside perspective is invaluable in developing successful themes and identifying difficult issues

19 You ve seen one argument, you ve seen them all! Each case is different Are you in a court of error or a court of last resort? Research your panel and get feedback What precedents are at stake? Know your record, especially the critical parts

20 iudices Latinam ames

21 Stand your ground: concede nothing Appropriate concessions improve credibility Determine key points versus collateral issues Focus argument and maximize your time Get help to separate the wheat from the chaff

22 I don t have much time for the brief, but my argument will bring tears to their eyes It is a small college and yet there are those who love it. --Daniel Webster, Oral Argument, Dartmouth College v. Woodward (1818) (from the Oxford Companion to the Supreme Court of the United States); Trustees of Dartmouth Coll. v. Woodward, 17 U.S. 518, 4 L. Ed. 629 (1819)

23 I don t have much time for the brief, but my argument will bring tears to their eyes I don't like to badger people. These are not children. The court traditionally did not do that. I have been there 20 years. I see no need for all of that. Most of that is in the briefs, and there are a few questions around the edges. -- Justice Clarence Thomas, 2012 (Politico and A.P.) [W]ithout disputing in any way the dominance of the briefing in the decisional process, it is natural, with the voting coming so closely on the heels of oral argument, that the discussion at conference is going to focus on what took place at argument. -- Chief Justice John Roberts, 2005, Oral Advocacy and the Re-emergence of a Supreme Court Bar, Journal of Supreme Court History

24 The law is so clear, how could we lose?

25 JUNE 2018 APPELLATE PRACTICE SECTION June 11, 2018 Matthew J. Segal Sarah C. Johnson Pacifica Law Group LLP

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27 USING AN APPELLATE COACH TO WIN IN THE SUPREME COURT By Justice Faith Ireland (Ret.) WHEN TO START? This will be a cost-benefit analysis. What s at stake? What s your budget? Is your case potentially so lucrative or so potentially damaging to your client that the appellate consulting fees are justified? Spend all you can afford. Remember that what you learn for this case will also prepare you for your next appellate case. You are investing in your own skill set. Most consultants charge by the hour. They may require a retainer or not. You may be able to negotiate a flat fee as well. The answer s always no unless you ask. Petition for Review If you are petitioning the Supreme Court for Review, START THERE. If your case is not accepted, you re done. If you are defending review it may not be as important, especially if you want cross-review or feel it is most likely the case will be accepted. Briefing If you want help with briefing start your consult before the briefing. Have your coach help you select your Goal, Strategy, Theory and Theme. You can then do the briefing, and have it reviewed by the coach for edits. Editing is the KEY to briefing. Oral Argument Many appellate lawyers wait until the briefing is done to ask for help with oral argument. Preparing for oral argument matters! 1) Your confidence increases the perception of the merits of your case. 2) Judges absorb information differently. Hearing is most important to some. 3) Your preparation allows you to answer the questions that are important to the court. HOW DO YOU GET THE HELP YOU NEED?

28 GOAL, STRAGEGY, THEORY, THEME AND DETAILS Your coach will want to start with the details. Have you perfected the record, properly assigned error, determined the appropriate standard of review and researched the compelling legal authority? In perfecting the record, err on the side of inclusiveness: clerk s papers, trial exhibits, and transcripts. Don t risk delay, sanctions or negativity, by needing to supplement the record. Your coach may review the findings of facts and conclusions of law to make sure you have preserved error. Unchallenged findings of fact will be accepted as verities on appeal and cannot be attacked in argument. Fresh eyes. You have lived with your case for months or years. Your coach brings a beginner s mentality to your case. This is good because that is the point of view the Justices will have, especially if your case is in an uncommon area of the law. The fresh eyes will help you to follow the KISS principle. Your coach will want to know what you NEED in order to WIN. The coach will want you to boil down your request for relief to only what is required to get the relief you need. Even where you want the court to adopt a new rule of law or reverse existing law, the focus should be on the result you need: sustain or reverse summary judgment; affirm the Court of Appeals; dismiss the case; etc. This is the GOAL of your case. Don t ask the court for a new rule of law when you can win by fitting your case into the existing framework or within a recognized exception. Remember separation of powers and do not as the Court to do the legislature s work. Your STRATEGY is how you intend to reach your goal: challenge the law, argue error, allege prosecutorial misconduct, incompetence of counsel, etc. Ask your consultant to help you develop your LEGAL THEORY, that is-- why you are legally entitled to win. Also develop your THEME, that is why you are morally entitled to win; that is, why justice is on your side. Emphasize your legal theory in the briefing and your theme in oral argument.

29 KNOWING WHAT THE COURT WANTS Your coach will help you understand what every appellate judge wants to accomplish: (1) to find and apply the correct law; (2) to write a good opinion and (3) to do justice. Make their job easy. Petition for Review: The Supreme Court has about cases filed annually. It typically accepts between cases annually. Of the cases accepted, many are criminal, further reducing the likelihood of a civil petition for review being accepted. In 2017 The Supreme Court published 92 opinions. Your coach should know RAP by heart and school you in its consequences. The Supreme Court leaves error correction to the Courts of Appeal. Your coach will insist you focus on identifying: conflicting appellate law; a significant question of constitutional law; or an issue of substantial public interest. Your coach will school you in how petitions are handled in the Supreme Court. Who decides if your case is taken? A panel of four justices and the Chief Justice. One Justice reports on the petition to the panel. Who helps them with a recommendation? This is done by someone in the Commissioner s office. These people DO know RAP 13.4 by heart. They are not interested in the merits of your case! Their recommendation to the Court will be does your case meet the RAP criteria. The reporting judge may disagree with the commissioner, but the commissioner s report is important. If the panel is not unanimous that a case should be accepted or denied, the petition will be referred to the next en banc meeting (held once a month) and the decision of the majority of the justices will be binding. Briefing Be Timely. A wise journalist once said, "Industry is a better horse to ride than genius." Observing the rules for timely filing of briefs and other documents will gain you a good reputation with the clerk s office and will keep you from sanctions. Don t hesitate to call the clerk s office with any questions. They are truly there to serve you. Be brief. This may be even more difficult than being on time. Often the brief is done after exhaustive research, at the last minute, leaving no time for the

30 rigorous task of editing. Plan your time to allow for polishing and compression. Compactness is another element of a brief s persuasiveness. "A well-pruned argument suggests confidence; a long, rambling one suggests desperation, or at least nervousness. A tight, spare presentation is a sign of character." 1 How do you squeeze the excess from your brief? Professor Tim Terrell, quoted above, who has taught at the Appellate Judges College (held annually at New York University), offers advice. First, remove unnecessary facts or facts which will be discussed later, unless critical. Next, discuss only cases that relate directly to your conclusions. Finally, break the editing process into steps to avoid the confusion of trying to do everything at once. This method requires six trips through your document to: 1. Edit for audience: tone, length, appropriateness 2. Edit for organization (including the all-important content of the introduction) 3. Edit for coherence of paragraphs and smoothness of transitions 4. Edit for clarity of sentences 5. Edit for correctness of grammar and punctuation 6. Proofread 2 Although demanding, this method produces a professional result and may make the persuasive difference. Cite Compelling Authority How should you select the precedent you will cite? "Judges do not apply precedents blindly," 3 says Judge Aldisert, who is acknowledged by other judges as one of the foremost experts on appellate writing. He suggests you use specific criteria. With editorial license, I would put the criteria into five questions: 1 Stephen W. Armstrong & Timothy P. Terrell, Thinking Like A Writer: A Lawyer s Guide to Effective Writing and Editing, pp (1992). 2 Id. at pp and Ruggero J. Aldisert, Winning on Appeal, p. 238 (1996).

31 1. Are the material facts sufficiently similar to make the cases comparable? 2. Is the principle you rely upon a holding or mere dictum of the case? 3. Does a tough dissent or a meager consensus of the court weaken the principle? 4. Is it bedrock or shale of the law? 5. If it is old precedent, is it still cited or approved? Do not string cite unless you need to convince the court that the weight of authority favors your result. (For example, you are asking the court to adopt a new rule of law for this jurisdiction that has been well recognized elsewhere.) If you do string cite, I suggest you do it in a footnote, so the court doesn t think you are just filling pages. To be compelling as well as brief, [D]o not dilute your argument with weak, thinly supported contentions. More is not necessarily better stick to your principal points, and keep the court s attention focused." 4 Oral Argument Mark Twain said, "A man cannot be comfortable without his own approval." Adding gender neutrality, it is a wise admonition for the advocate. To have your own approval, you need to believe in your case and to feel prepared. If you do not believe in your case, ask yourself why. Is the law against you? Is your client a person or entity people love to hate? More likely, if you feel beaten before you 4 Armstrong & Terrell, supra, pp

32 begin, you may be expecting more of yourself than is reasonable. Remember that you are not God. Neither are the judges, but to the best of their ability, they will decide the case. Your job is to present the case as well as you can, then let go and trust justice. Judges, like all adults, have preferred modes of learning -- some are visual learners, some are auditory, and some tactile. However, all learn to some degree in each mode. Your oral argument may particularly appeal to the auditory learners. Elementary Preparation Being prepared means that you grasp the facts, names, dates, events, and pleadings with facility. Your paperwork is within reach and tabbed for easy reference if you should need to recite from a document. You have condensed your arguments to a few succinct sentences. You are appropriately attired and well rested. Feeling nervous before you begin is natural and healthy. When you come to the podium, breathe deeply before proceeding. If you are prepared, your nervousness will escape with the exhalation. You may assume the court knows the basic facts and procedural history of the case, and you should not spend time detailing them. You may need to provide a factual context (for example, the timing and sequence of events in an argument on criminal intent or a description of the property layout in an adverse possession case). Stick to essential facts.

33 Distillation To prepare, you should be able to make your argument in a few choice sentences. Distill your topics for argument to the most compelling and be prepared to spit them out. Begin with a road map -- just the bare outline. For example: "The case against my client should be dismissed because his speedy trial rights were violated, the jury was improperly instructed on the elements, and the prosecutor made inflammatory and prejudicial statements in closing argument." In a civil case: "My client is entitled to a new trial because the court improperly granted partial summary judgment on liability, refused appropriate expert testimony on damages, and improperly instructed the jury on the duty to mitigate." Controlling Authority Know your controlling authority and that of your opponent. Have your key cases reduced to the kind of statement you would put in a parenthetical behind a citation. Know enough about the facts to be able to compare it to the case at bar. Make an alphabetical list of all cases cited by both sides that includes a onesentence synopsis of each case. Use it to prepare and have at counsel table to avoid panic if you are asked about a case by name. The Court s Questions After distilling the argument to a few succinct statements and memorizing controlling authority, your most significant task is to prepare for questions.

34 Most courts today are "hot" courts in that they prefer to discuss the case through question and answer, rather than sitting back and listening to a prepared argument. The Washington Supreme Court is no exception. You should be prepared to answer these ten questions in every case: 1. What are you asking the court to hold or do? 2. What is the standard of review applicable to the case? 3. What rule of law are you asking the court to apply? 4. Are you asking the court for a new rule of law? If so prepare to: succinctly and precisely state the rule state how it will work and what the practical results will be state the authority for adopting the new rule say whether it will affect many or few answer whether it expands or contracts existing law answer if it will likely increase litigation say what cases it would require overruling say if it requires balancing or weighing social or political interests or otherwise impacts public policy answer why the change in law should not be left to the legislative branch. 5. Would following any existing rule afford the result you seek? 6. Why is your authority superior to that cited by your opponent? 7. Will any interests other than those of your individual client be advanced by the result you seek? 8. Will any detriment resulting from what you seek be confined to the opposing party? 9. Is your case "all-or-nothing" or would a partial victory help?

35 10. How is justice advanced by the result you seek? 5 Conclusion Make yourself familiar with the timing device employed by the court. If your time ends when you are being asked a question or have just started to answer one, ask permission to finish your thought. If you are not in mid-question or answer, take advantage of the opportunity with a ten-second reason why the relief you seek should be granted. Your conclusion need not be flowery or rhetorical. It is better to be succinct and well-reasoned: "In closing, I ask this court to dismiss the charges because under our constitution, timely justice is owed to all." In a civil case: "In closing, I ask this court to remand this case so that a new jury can consider all the justice of the case." Oral argument can win your case. 6 5 For a more complete discussion, see Aldisert, supra, p For a discussion of the mechanics and fine points of good oral argument, see Philip Talmadge, "Making Your Argument More Appealing," Washington State Bar News, p. 21 (Feb. 1997).