Oregon Court of Appeals reverses trial court in my clients’ favor

Appeal and cross-appeal

This is a case I took up on appeal for another lawyer, and won a reversal – the Court of Appeals affirmed the trial court’s rulings in our favor and reversed the trial court’s rulings against us, a complete victory for our clients.

I represented the Knudsens, who had been sued by the Grimstads over an inheritance. Three key legal claims were at issue. The trial court awarded the Grimstads part of the Knudsens’ inheritance under claims of (a) unjust enrichment and (b) money had and received, but denied the Grimstads’ claim of (c) intentional interference with prospective economic advantage.

Both parties appealed, resulting in an appeal and cross-appeal. On June 9, 2015, after extensive legal briefing, the appeal and cross-appeal was argued to the Oregon Court of Appeals.

The Court of Appeals’ opinion

One and one-half years after oral argument, the Court of Appeals issued a complex 29-page opinion, ruling in my clients favor and against the Grimstads on all claims. See Grimstad v. Knudsen, 283 Or App 28 (December 21, 2016). At the end of its opinion, the Court of Appeals favorably concluded as follows:

“In sum, we conclude that the trial court erred in concluding that the [Grimstads] proved a claim for unjust enrichment, because [the Grimstads] failed to show that they had any legal or equitable interest in the proceeds of the sale of the [real estate]. For that same reason, the trial court erred in concluding that [the Grimstads] proved their claim of money had and received. The trial court therefore erred in granting plaintiffs relief on those claims. On cross-appeal, [the Grimstads] failed to put forward evidence to create any genuine issue of material fact with respect to the improper means or purpose element of their intentional interference with prospective economic advantage claim. The trial court therefore did not err in granting [the Knudsens’] motion for summary judgment [on that claim].”

See Grimstad v. Knudsen, 283 Or App 28, 58 (December 21, 2016) (reversing and remanding on appeal; affirming on cross-appeal).

Remand to the Washington County Circuit Court

This appeal and cross-appeal will now be remanded (returned) to the trial court for entry of a new judgment fully in my clients’ favor. As an aside, I predict this case and its opinion will become the new “name case” or “lead opinion” for claims of intentional interference with prospective economic advantage. Time will tell.

 

Physician wins! Oregon Court of Appeals reverses Medical Board

This is a case I took up on appeal for another lawyer, and won. In this case, the Oregon Medical Board revoked a physician’s medical license by missapplication of complex procedural rules. In a unanimous decision, however, the Oregon Court of Appeals reversed the Oregon Medical Board in my client’s favor. See Yankee v. Oregon Medical Board, 280 Or App 1 (August 3, 2016) (remanding for further proceedings).

Appeals against the Oregon Medical Board are difficult to win

On appeal to the Oregon Court of Appeals, I argued that the Oregon Medical Board erred when it denied my client’s motion to reschedule his hearing, and revoked his medical license, without first holding a hearing on his motion before an Administrative Law Judge (ALJ), as required by administrative rule. The Oregon Court of Appeals agreed, and reversed the Oregon Medical Board, remanding the case for further proceedings.

This appeal was won on procedural grounds and, as experienced appellate lawyers know, this type of appeal can be difficult to win. I argued this case to the Oregon Court of Appeals in February of 2015, but the court did not decide the case until August of 2016, 18 months later, suggesting that the Court of Appeals needed significant time to decide this troubling case.

The Court of Appeals’ ruling: The Oregon Medical Board must follow prescribed procedure

The holding in this case is simple: The Oregon Medical Board must follow “prescribed procedure” when seeking to revoke a physician’s license:

“Having concluded that the [Oregon Medical] board procedurally erred when it did not provide [Dr. Yankee] with a hearing before the ALJ, we must remand this matter for further proceedings if “the fairness of the proceedings or the correctness of the action may have been impaired” by that “failure to follow prescribed procedure.” ORS 183.482(7). Here, the fairness of the proceedings may have been impaired. [Dr. Yankee] was entitled to have a hearing before a neutral ALJ [Administrative Law Judge] on the reasons for his not appearing once the [Oregon Medical] board disputed the facts articulated by [Dr. Yankee]. Instead, the [Oregon Medical] board resolved those disputed factual issues in its own favor. Accordingly, we reverse and remand for further proceedings.”

See Yankee v. Oregon Medical Board, 280 Or App 1, 6 (August 3, 2016) (underscore added).

Ten year anniversary of U.S. Supreme Court opinion against DEA in favor of physicians and pharmacists

This year marks ten years since the United States Supreme Court issued its opinion in the case of Gonzales v. Oregon (406 KB), decided January 17, 2006. In this case, the United States Supreme Court affirmed the Ninth Circuit Court of Appeals’ opinion (263 KB), which had earlier affirmed the federal District Court’s opinion (1.78 MB) enjoining former United States Attorney General John Ashcroft from prosecuting Oregon physicians and pharmacists.

Against the DEA, healthcare defense attorney seeks injunction

Normally, as a healthcare defense attorney, someone else, for example, a licensing Board or the Drug Enforcement Administration (DEA), initiates the litigation. In this case, however, in order to protect physicians and pharmacists throughout the State of Oregon, it was necessary that I become the plaintiffs’ attorney. I sued former Attorney General John Ashcroft and the DEA in federal District Court on behalf of a physician and a pharmacist who were threatened with federal criminal investigations, prosecutions, fines, and imprisonment. See Complaint (1.24 MB).

Important victory for physicians and pharmacists everywhere

The opinion by the United States Supreme Court is an important victory for physicians, pharmacists, and patients everywhere, because it establishes the precedent that the United States Attorney General may not define the scope of legitimate medical practice, and that the States, not the federal government, regulate the practice of medicine. Justice Kennedy, writing for the majority of the Court, concluded his 28 page opinion writing:

“The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it. Gonzales v. Oregon (406 KB)(Kennedy, J.)”

This victory stands today – the injunction against the DEA is still in effect! This case is discussed in more detail on the appellate practice page of this website.

How to decide whether to file a notice of appeal

My practice includes appellate litigation in state and federal courts. Most often, I am recruited to join the litigation team soon after a ruling or finding has gone awry. As such, I am the new lawyer on the team, at the start of the appeal, the occasional second half of litigation. There are always many questions, but the key questions concern the likelihood of success on appeal and whether to file the notice appeal in the first place.

Evaluating the merits of an appeal in an “easy” case

In the “easy” cases, I can evaluate a single issue appeal in two to three hours, and then share my opinion with the trial lawyer and the client, A decision can then be made to file the notice of appeal, or not. It is nice when it happens this way, but it only happens this way in a small percentage of the cases for the simple reason that most cases (or “records”) are much more complicated than a single legal issue.

Evaluating the merits of an appeal in a hard case, with a large record, and much at stake

In the hard cases, where there is much at stake, and the merit of the potential appeal is uncertain, sometimes all you can do before the deadline to appeal is to determine that the appeal is colorable, in good faith, and has sufficient merit to move forward. Then, after the notice of appeal has been filed to protect the deadline, the decision to appeal can and should be revisited at each new phase of the work, until such time the decision to appeal is plainly justified, or not. In those cases where the decision to appeal turns out not to be justified, the appeal may be dismissed.

Moving forward one step at a time on appeal for a good result

The best example I have of such a hard case, with far more questions than answers at the beginning of the appeal, is the case of O’Donnell-Lamont & Lamont (260 KB). In this appeal, I eventually won a unanimous 7-0 decision by the Oregon Supreme Court, in which the Oregon Supreme Court applied a recent holding from the United States Supreme Court and reversed the Oregon Court of Appeals in favor of my clients. At the start of this appeal I did not know what I could accomplish. In the end, this appeal was a big victory, restoring custody of two small children to my clients, the maternal grandparents. This unanimous 7-0 decision by the Oregon Supreme Court was also an important victory for children throughout Oregon because it established the legal precedent to be applied in third-party child custody disputes, affording more protection for children.

As if that were not enough, there were several key accomplishments along the way. Until this appeal, the Oregon Court of Appeals had never granted reconsideration en banc, meaning by the full court, with all ten judges participating. Later, after the Court of Appeals denied my clients any relief, the Oregon Supreme Court chose this appeal as the vehicle to resolve a number of similar third-party custody issues in Oregon. The other similar pending cases involving the same subject matter were placed into abeyance (on hold) pending the outcome of this appeal. So, in the end, the Oregon Supreme Court reversed the Court of Appeals in my case, and the other cases too. All this from an appeal where, in the beginning, the merit of the appeal was uncertain.

Another reason to retain an appeals attorney early in the process

Orders versus judgments? When and what to appeal?

As an appeals lawyer, I am occasionally contacted by a trial lawyer on or near the last day to file a notice of appeal, anxious because her or she is uncertain whether a particular order or ruling is appealable. In these cases, the order is in hand, the time to file the notice of appeal is about up, and a judgment has not been entered yet. The trial lawyer’s question is usually something like this: Do I file a notice of appeal from the order, or do I wait for a judgment to be entered? This is no time for uncertainty. If you wait for a judgment to be entered, the time to appeal the order will have passed, and if it turns out the order was the thing to appeal, you will have lost your chance to do so.

When and what to appeal? – the source of the problem

Generally speaking, in both state and federal courts, a notice of appeal is often due within 30 days after entry of a judgment. Appellate lawyers know, however, that depending upon the circumstances of each case, there are shorter and longer periods of time to file a notice of appeal, so each appeal deadline must be independently evaluated and verified. Further complicating matters is the fact that sometimes there will be no judgment and, in these cases, the appeal will instead be taken from an order. This may occur, for example, when an order affects a substantial right and effectively determines an action so as to prevent entry of a judgment. This is just one example. There are many more, too numerous to list here. There are also important differences between state and federal appellate practice. The important thing to know is that often, much time, money, and grief can be saved by taking early action to set the stage for your appeal, just another reason to retain an appellate attorney as soon as you suspect you might need an appeal.

As an appeals lawyer, here is one way I avoid the problem

Time permitting, in close-call cases, when it is uncertain whether the appeal will be from an order or a judgment, I will recommend that the trial lawyer pursue entry of a judgment within the appeal period of the order. Then, with both an order and judgment in hand, I can file a notice of appeal from both documents. This approach ensures that both the order and judgment are appealed, eliminating the need to file a “precautionary notice of appeal” from the order because time is about to run on an appeal from the order. This approach only works, however, when there is time to pursue a judgment within the appeal period for the order. This approach will not work when time is up to appeal from the order, yet another reason to retain an appeals lawyer as soon as you suspect you might need an appeal.

When to bring in an appeals attorney

A recent win on appeal

I recently won a quick and good result on appeal. This case in particular illustrates the importance of making your record for appeal, a fact appellate lawyers know to their core. This recent victory also illustrates the importance of bringing in an appellate lawyer sooner, rather than later, to prepare for the appeal. An appellate lawyer can ensure that an legal error (or legal issue) is properly preserved for appeal. An appellate lawyer will also be familiar with the various standards of review applicable on appeal.

What was unusual about this recent case, is that the trial lawyer accurately predicted she could win three important but difficult rulings, and she associated me early on to help her make the best possible record in anticipation of the other side’s threatened appeal. Working together, we ensured that the proper law was applied for each legal issue, and we further furnished the trial court with concise and forceful, legal and factual arguments, on each legal issue, enabling the trial court to rule in our favor on all three difficult issues.

As expected, the other side appealed. Our response on appeal was (a) that the trial court applied the correct law when deciding each of the three legal issues raised on appeal, (b) the trial court record was inadequate to reach the other side’s first two legal issues, and (3) the trial court did not abuse its discretion on the third legal issue. In sum, we successfully defended all three key rulings in our client’s favor because we prepared for the appeal while we were still in the trial court. The appeal was won in great part because of what we did in the trial court. This is but one example of what an appellate lawyer can contribute while a case is still before the trial court.

Another case soon going up on appeal

I was recently retained in another new case, where the other side is attempting to set aside the parties’ judgment. The trial lawyer in this new case recommended to his client that I be added to the legal team, for at least three reasons. First, he wants to win, and he volunteered that appellate lawyers are more familiar with the legal standards applicable to set-aside motions. Second, he wants to make the best record possible, in anticipation of an appeal, because the other side is already threatening to appeal if they lose their motion to set aside the judgment. And third, if there is an appeal, he wants to defend it as the respondent on appeal, not file it as the appellant on appeal. As I write this, I know very little about this new case, but I well know my role as appellate attorney – here we go again – let’s win, and let’s make the best record possible for appeal.

Associating an appeals attorney before there is an appeal

My point, of course, is that appellate lawyers can do more for you if we are involved sooner than you might think. Here are a few thoughts for your consideration:

Before and during trial

Occasionally, appellate attorneys will be working in the background during trial preparation and trial, as illustrated by the two cases discussed above. Appellate attorneys are also involved in larger cases, those with ample budgets, and the need for several attorneys just to get the case to trial. If there are several attorneys preparing your case for trial, it makes sense that one of them should have appellate experience, to round-out the team.

After trial, but before judgment

More often, appellate lawyers are brought in soon after a loss in the trial court, to help prepare the judgment, in anticipation of an appeal. I often characterize the preparation of the judgment as the interface between the trial and the appeal. By this point, the outcome of the trial is known, and remaining task is to reduce various trial court rulings and findings to a written judgment. There is much work to be done, and many considerations in anticipation of the appeal. The terms of the proposed judgment are extremely important, and any disagreements will be resolved by the trial court, creating one more opportunity to improve the record for appeal. If execution on the judgment (i.e., collection efforts) is a further concern, the timing of the entry of the judgment, and preparation and filing of the bonding to stay (prevent) execution on the judgment, is also important, if not urgent. An award of attorney fees may also be an issue and, if so, this presents another consideration for appeal. After trial, but before judgment, there is plenty to do, and this type of work is often done by, or with the assistance of, appellate lawyers.

After judgment

Most often perhaps, appellate lawyers are brought in after entry of judgment, to prepare the notice of appeal, before time runs out to do so. At this point, an appellate lawyer can handle the bonding necessary to stay execution of the judgment, and also take the case up on appeal, but the opportunity to improve the record and the judgment for appeal, will have passed.

How to evaluate when to involve an appeals attorney

Most cases will not go up on appeal, and experienced trial lawyers will quickly recognize these cases. Other cases, predictable in nature, and handled by experienced trial lawyers, may not justify or require an appellate lawyer. However, in those cases where an appeal is threatened, likely, or certain, the question is not whether to bring in an appellate lawyer, but when. Each case is different. Consult an appellate lawyer whenever an appeal is foreseeable, or likely. Most appellate lawyers will have this initial discussion with you at no cost, so make the call, to determine what will work best in your case.

Dr. Lawrence Wean, of Media, Pennsylvania, sentenced to prison

Yesterday it was reported that 61 year-old doctor Lawrence Wean, of Media, Pennsylvania, a suburb of Philadelphia, was sentenced to prison for 10 to 20 years, and that he had earlier rejected a plea agreement that would have required less prison time. Experienced lawyers will know that rejecting a plea agreement and proceeding to trial is something of a gamble, and if you lose that gamble, you can expect to serve more time than what might otherwise been ordered after a plea, so a longer sentence for doctor Lawrence Wean comes as no surprise.

I have no personal knowledge of Dr. Lawrence Wean, or of his case, having only read about Dr. Wean’s case in the media. As I understand it from news reports, Dr. Wean sold prescription drugs to undercover officers, was convicted in October of writing unlawful prescriptions and filing false insurance claims, has been ordered to pay over $40,000 in fines and $62,000 in restitution, and was just sentenced to 10 to 20 years.

Too much exposure for physicians?

One of the things I have learned as an appellate lawyer defending physicians on appeal is that the additional time imposed at sentencing, after losing at trial, is disproportionately more time than anyone expected when measured against earlier plea offers or negotiations. In other words, the gamble for physicians facing drug diversion charges for prescription drug crimes, may be a larger gamble than the typical defendant might face when rejecting a plea agreement. Physicians, family members, and lawyers defending physicians for the first time, are genuinely surprised, something I have witnessed first hand.

Is there a better approach for some physicians?

One of the opportunities I would like to explore when the right case presents itself, is the idea of negotiating a very early and favorable plea agreement, followed by an quick sentencing and an early self-report to serve time, before the typical two-or-more years have passed, and extensive financial resources have been depleted, which is common when taking drug diversion charges to trial. Some might recall that this type of efficient resolution was Martha Stewart’s solution to her legal woes a few years back. She quickly negotiated a plea agreement, was sentenced, surrendered, served her time, and then got on with her life.

A unique physician will be necessary

This approach will require the right type of individual, and I have no way of knowing whether doctor Lawrence Wean was such an individual. Most physicians, it seems, are willing to postpone the start of trial as often as will be permitted, and they appear further willing to spend all that they have to avoid serving time. These tendencies appear to be true even after conviction, if the case is on appeal (although “bond” is seldom allowed on appeal, I have helped physicians remain free pending appeal). Nonetheless, for the right physician, I find the idea of a quick resolution and sentence intriguing. In the right case, a physician could enter a plea and serve his or her time in three years, at little financial cost, relatively speaking. In sharp contrast, however, at the end of three years, all many physicians will have to show for their efforts is one of more convictions and financial ruin, with a sentencing hearing, a prison term, and an uncertain appeal, on the horizon.

When in doubt, protect your right to appeal

Sometimes the decision to appeal a verdict or judgment is an easy decision. In anticipation of an appeal, trial lawyers will often make a “record” in the trial court proceeding. Other times, when the legal issues are novel or complicated, both the parties and the trial court understand that the losing party will likely appeal the loss. In these cases, the decision to file an appeal – or correctly stated, the decision to file a “Notice of Appeal” – is a relatively easy decision. Other times, however, the decision to appeal is more complicated, and the time remaining to make such a decision can run quickly.

When time is short – file the Notice of Appeal to protect the right to appeal

As an appellate lawyer, I am occasionally contacted days before the appeal period will run. In these cases, there is not enough time to evaluate the merits of the appeal. In order to protect your right to appeal, it is sometimes necessary to file the Notice of Appeal and then sort out the legal issues in soon afterward. If the decision to file a Notice of Appeal turns out to have been the wrong decision, the appeal may then be dismissed. In these cases, where the legal issues are sorted out after the Notice of Appeal has been filed, it is necessary to act quickly, to ensure you have a basis to appeal.

When “appealability” is uncertain – file the Notice of Appeal to protect the right to appeal

As an appellate lawyer, I am occasionally contacted because it is unknown whether a particular document or ruling may be appealed. In close-call cases, when time is short, it is often necessary to file what I sometimes refer to as a “precautionary Notice of Appeal,” to protect the potential right to appeal. Immediately thereafter, it is necessary to resolve any legal issues regarding whether the document or ruling is appealable, as these same issues will no doubt be spotted and raised by staff lawyers at the Court of Appeals, or by the opposing appellate lawyer. In those cases where the doubt cannot be satisfactorily resolved, the next step may be to file a motion to determine jurisdiction, to obtain the court’s determination as to whether the particular document or ruling may be appealed.

When the merits of an appeal are unknown – file the Notice of Appeal to protect the right to appeal

As an appellate lawyer, I am occasionally asked to provide an independent assessment as to the likelihood of success on appeal, before the period to file a Notice of Appeal expires. This is doable in some cases, where the issues (claims of error on appeal) are known in advance. In other cases, if the trial court record is large and the basis for the appeal uncertain, it will again be necessary to file a Notice of Appeal to protect the right to appeal. The independent assessment will follow soon after, after transcripts, exhibits, etc., are gathered and reviewed. In one such case, I had to advise a family that had lost at the Oregon Court of Appeals that I had no idea what I could do to help them, other than file the Notice of Appeal, gather the record, and start work – if we had a basis for the appeal, we would go forward; if not, we would dismiss the appeal. Indeed, we had a basis to appeal. Sometime later, in a unanimous 7-0 opinion, we won a reversal from the Oregon Supreme Court. The point is that occasionally it is necessary to file a Notice of Appeal, to protect the right to appeal, and then sort the issues immediately thereafter.

Against the DEA, lawyers mount vastly different defenses

Part of my work requires that I review trial court records in order to prepare and file briefs on appeal. Consequently, I see the complete record, from beginning to end, prepared by different lawyers. One practice area that keeps me on my toes is defending physicians, pharmacists, and prescribing nurses from prescription drug charges by the DEA. Lawyers defending such cases can take vastly different approaches to their work. Some do a great deal of work to prepare, and do that work well in advance of trial. Others, not so much, saving preparations until close to trial, which can be unnerving to physicians, pharmacists and prescribing nurses, demanding professionals in their own right.

DEA lawyers present uniform prosecutions across the country

My experience includes directly defending or assisting physicians, pharmacists, and prescribing nurses in cases arising out of the Third, Fourth, Seventh, and Ninth Circuits and 13 states, including Indiana, South Carolina, Arizona, Oregon, Virginia, Georgia, Pennsylvania, Florida, Hawaii, Texas, Connecticut, California and Michigan. With this broad experience, I have seen first hand that the DEA lawyers take a similar if not uniform approach across the country when investigating and prosecuting physicians, pharmacists, and prescribing nurses, which should come as no surprise, since the DEA’s work is driven from the top down. I have also seen first hand that defense attorneys are far less uniform in their approach to their work, and the quality of each defense is dependent upon the individual firm and lawyer(s) responsible for preparing and delivering defense.

Working against the DEA, lawyer’s experience reveals common mistake

As a part of the work summarized above, I represented the physician and pharmacist before the United States Supreme Court in the case of Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006). I am also the lawyer that obtained the release from prison of doctors David and Randall Chube, on appeal to Seventh Circuit Court of Appeals, in the case of US v. Chube II, 538 F3d 693 (7th Cir. 2008). Both these cases are discussed in detail elsewhere on this website, and that effort will not be repeated here, except one point bears repeating: If a case is not well-defended, the DEA will criminalize some aspects of the practice of medicine by confusing the civil standard of care with the criminal conviction standard. Don’t let this happen to you.

An adequate defense can be complicated and expensive

Drug diversion cases (i.e., prescribing or dispensing “without a legitimate medical purpose”) are complicated cases to defend, with each case presenting the intersection between law, medicine and, sometimes, politics, with the occasional involvement of the media. When mounting an adequate defense against the DEA, lawyers face divergent tasks, and it is difficult for one lawyer to do it all. This is not an uncommon problem in litigation generally. When I was a younger attorney, recruiting lawyers to help defend physicians in a small southern medical clinic, one senior attorney commented to me that “if we had four lawyers and $100,000 we could do something with this case,” and his comment is often spot on. The point I would stress to any physician, pharmacist, or prescribing nurse defending against prescription drug charges, is to ensure that your defense team is complete, and that your defense is prepared well in advance of trial.

Settling your case on appeal

Is it possible to settle a case on appeal, after losing at trial?

Yes, it is sometimes possible to settle a civil case on appeal, even after losing the case at trial. If you have a one or more meritorious issues to claim as error on appeal, and there is still time to file your Notice of Appeal, your case may have significant settlement value. If you are uncertain about appealing, have an experienced appellate lawyer evaluate your potential appeal, both for its merit and its settlement value. And do not delay – the time allowed to file a Notice of Appeal is often short.

Do the legal issues matter?

Yes, the legal issues do matter. Some cases, for example, are simply not capable of settlement, take for example cases involving larger legal or political issues that reach beyond the parties, or child custody disputes, or any case where the parties are too closely or too emotionally involved. These cases can be very difficult, if not impossible, to settle. On the other hand, many business or transactional disputes are quite capable settlement, particularly if the parties are business-minded or pragmatic. The best chance of settling an appeal occurs when there is one or more meritorious issues on appeals, both parties are pragmatic, and both parties want out of the litigation.

How best to proceed – a few practice tips:

The initial assessment is important. An experienced appellate lawyer, one that is also experienced with settlements, will be necessary to evaluate both your chances of success on appeal and the likelihood of an appellate settlement. In some cases, an experienced appellate lawyer can recommend when to stand firm, or when to settle. In other cases – the close-call cases – an experienced appellate lawyer can make recommendations in the alternative, enumerating the pros and cons for each recommendation, enabling you to make the best decision in your unique circumstance. In the worst of cases, an experienced appellate lawyer will know when you have little chance of success on appeal, and will tell you as much, i.e., that anything gained through settlement will be more than will be gained by taking up the appeal. An experienced appellate lawyer can guide you through this process.

Avoid spending too much time on the merits of an appeal. A discussion with the other side about the merits of an appeal can be helpful at the start, but these discussions can quickly become counter-productive. When settlements occur it usually because the parties were able to temporarily set aside the legal fight and focus on the pragmatic benefits of a settlement for both sides. A experienced appellate lawyer, one skilled at both appeals and settlements, can guide you through the analysis and the negotiations.

Avoid trying to settle your own case. The parties to litigation can rarely settle an appeal on their own, usually because the parties are too closely involved. Experienced trial lawyers that remain objective throughout the litigation can be well suited to negotiate settlement, but sometime they are also too closely involved. In almost all cases, the addition of an appellate lawyer to the team, an appellate lawyer that is also experienced with settlements, is most helpful. In a future post, I will write about the appellate settlement program.