Appellee Strategies in the Federal Courts of Appeal Leveraging Appellate Waivers, Cross Appeals, and Other Proactive Tactics in Civil Appeals

Transcription

1 Presenting a live 90 minute webinar with interactive Q&A Appellee Strategies in the Federal Curts f Appeal Leveraging Appellate Waivers, Crss Appeals, and Other Practive Tactics in Civil Appeals TUESDAY, JULY 23, pm Eastern 12pm Central 11am Muntain 10am Pacific Td Tday s faculty features: Anne M. Jhnsn, Partner, Haynes and Bne, Dallas Andrew Tuck, Senir Assciate, Alstn & Bird, Atlanta Kyle G.A. Wallace, Partner, Alstn & Bird, Atlanta The audi prtin f the cnference may be accessed via the telephne r by using yur cmputer's speakers. Please refer t the instructins ed t registrants fr additinal infrmatin. If yu have any questins, please cntact Custmer Service at ext. 10.

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5 APPELLEE STRATEGIES IN THE FEDERAL COURTS OF APPEAL Anne M. Jhnsn Haynes and Bne, LLP Dallas, TX Andy Tuck Alstn & Bird, LLP Atlanta, GA Kyle G.A. Wallace Alstn & Bird, LLP Atlanta, GA July 23, 2013

6 Reversal Rates (2012) Circuit Percentage f Civil Cases Civil Reversal Decided n Merits Rate All 57.3% 11.4% DC 68.8% 12.1% First 59.1% 10.2% Secnd 52.7% 6.4% Third 61.5% 11.3% Furth 70.7% 6.2% 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% 66% 6.6% 11th 45.5% 12.6% 6

7 Fur Pillars f Affirmance Preservatin f Errr Standards f Review Harmless Errr Stare Decisis 7

8 Snatching Defeat Frm the Jaws f Victry Rely slely l n fur pillars f affirmance. Stick t the issues framed by Appellant and take a purely defensive psture. Ignre the right fr any reasn rule, and fail t ffer alternate ways t the same result. Miss the pprtunity t file a crss appeal. 8

9 Standard Appellee Strategy Receive Appellant s Brief Outline Appellant s Arguments Attack Each Argument 9

10 Trap fr the Unwary Appellee Right Fr Any Reasn rule an appellee can argue that the decisin belw shuld be affirmed fr any reasn supprted by the recrd But what abut issues n which h the appellee lst? What abut issues the curt belw ignred? 10

11 Tw Cmpeting Principles Judicial efficiency especially in the summary- judgment cntext, appellate curts rule whether there is an issue f material fact fr trial, and shuld grant summary judgment if there is nt, even if the lwer curt applied incrrect reasning. Appellate Curts Review appellate curts shuld nt be in the business f lking at new issues that have nt already been addressed; they shuld crrect errrs in lwer curt pinins, and nt render judgments n issues fr which there is n ruling. City f Gainesville v. Ddd, 573 S.E.2d 369 (Ga. 2002) splintered pinin 11

12 Right Fr Any Reasn If Nt Argued? Appellee Waiver issues nt raised in the respnse brief will, in many curts, nt be reviewed under the right-fr-any-reasn rule Hamiltn v. Suthland Christian Schl, 680 F.3d 1316, (11th Cir. 2012). [a] wman f childbearing age was hired as a teacher at a small Christian schl. Then she gt pregnant, married, and fired in that rder. Then she filed a lawsuit. She lst n summary judgment. Hsanna-Tabr Evangelical Lutheran Church & Schl v. Equal Emplyment Opprtunity Cmmissin, 132 S.Ct. 694, 706 (2012). 12

13 Federal Circuits Appellee Waiver 7th, 10th and 11th Circuits: i appellee waiver, like in the 11th 4th Circuit Judge Hamiltn has dissented and urged applicatin f an appellee-waiver rule 2d, 4th, 5th and 6th Circuits have refused t apply appellee waiver 13

14 Nightmare Appellee Waiver Scenari Subsequent appeal Hamiltn v. Suthland Christian Schl ges back t the trial curt, and Hamiltn wins a sizeable jury verdict. What happens in the subsequent appeal? Third, Eighth, District f Clumbia (D.C.), and Federal Circuits have all rejected attempts t argue that a party has waived an argument in a secnd appeal by nt raising it in the first appeal. 14

15 When is a crss-appeal required? An appellate curt may nt alter a judgment t benefit a nn-appealing party. A crss appeal is necessary and prper nly when the appellee wants the appellate curt t alter the judgment (the bttm line, nt the grunds r reasning) f the district curt. Examples: Seeking t enlarge r reduce damage award Seeking enhanced r punitive damages Seeking r challenging attrneys fees Seeking t enlarge r reduce prejudgment interest 15

16 When is a crss-appeal imprper? "It is mre than well-settled that a party cannt appeal frm a judgment unless 'aggrieved' by it... Simply stated, a party wh has btained a judgment in his favr,,granting gthe relief sught, is nt aggrieved by it. A crss-appeal filed fr the sle purpse f advancing additinal arguments in supprt f a judgment is 'wrse than unnecessary', because it disrupts the briefing schedule, increases the number (and usually the length) f briefs, and tends t cnfuse the issues... Such arguments shuld, instead, be included d in the appellee's answering brief. In re Sims, 994 F.2d 210, 214 (5th Cir. 1993). 16

17 Crss-Appeals: Prs Creates jepardy fr the Appellant Implicitly suggests an appellate cmprmise Prvides the appellee an additinal brief May encurage settlement n appeal 17

18 Crss-Appeals: Cns Puts yu in the awkward psitin f defending the lwer curt n sme pints while attacking it n thers May distract frm the primary fcus f yur appellate brief affirm the lwer curt decisin Cmplicates an appeal that is therwise easy t beat Calls curt s attentin t subtleties r cmplexities that yu wuld prefer nt t highlight May make yur client lk greedy 18

19 Hypthetical #1 District Ct. grants summary judgment fr Defendant n grund A, and des nt address grunds B r C. Plaintiff appeals, asserting that SJ n grund A was errneusly granted. Shuld Defendant/Appellee raise grunds B and C as alternative grunds fr affirming the SJ? If Defendant/Appellee des nt raise thse grunds, has he waived them? Des Defendant/Appellee need t file a ntice f crss-appeal? 19

20 Hypthetical #2 District Ct. dismisses Claim A and submits Claim B t jury. Jury returns verdict in favr f Plaintiff n Claim B. Appellant/Defendant t argues that t an errneus jury instructin n Claim B requires a new trial. Appellee/Plaintiff argues that the jury instructins were crrect, but if Claim B is remanded, Claim A shuld als be retried. Was Appellee required t file a ntice f crss-appeal? If Appellee never mentined Claim A n appeal, culd he have raised it n remand? 20

21 Hypthetical #3 Appellant s statement f facts and issues presented are crrect and cmplete. Appellant s arguments are lgically presented. Shuld appellees always submit their wn versin f the facts and issues presented? Shuld appellees structure their argument t crrespnd directly t appellant s brief? 21

22 Final Tips fr Appellees Dn t frget yur initial reactins when yu first read the appellant s brief. Dn t rely n yur jury argument. Deal with bad facts. Highlight the lwer curt decisin. Help the curt f appeals write its pinin. 22