Tag: appellate attorney

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.

 

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.

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.

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.

 

How to shave months off the time it takes to conclude an appeal – Part II

In my last post, I discussed the opportunities that will allow the smart appellate litigator to shave months off the time necessary to conclude a basic appeal, from start to finish, in the Oregon Court of Appeals. In this post, I discuss a few more time-consuming events that are less common, but may still be anticipated as part of a larger, time-saving strategy, as follows:

Consolidation of two appeals

Occasionally, the litigants may be litigating two cases, having similar issues, that are going up on appeal separately. Or, there may be an appeal from a Limited Judgment entered before trial, and then a second appeal from the General Judgment entered after trial. In either case, it is often desirable for reasons of “judicial economy,” to consolidate the appeals, to save time.

Sometimes, when two appeals are consolidated, they are simply assigned the same briefing schedule and oral argument schedule. In other words, the two appeals “travel together.” Other times, the two appeals are in fact consolidated into one appeal, sharing common briefing, and creating an appellant and cross-appellant situation. Either way, the consolidation of two appeals requires the filing of a motion (which requires experienced legal judgment), and an order by the Court of Appeals.

One way to save more time is to file a joint motion to consolidate (i.e., a motion by both parties, without objection from any party). While it may take time to negotiate the terms of the joint motion, a joint motion eliminates any dispute between the parties that would requiring resolution by the Court of Appeals, thus saving time-to-ruling, although a joint motion may still be denied.

Another way to save still time, is to file the joint motion to consolidate early, while preparation of the transcript and/or opening brief is underway. This approach means that the time consumed by the Court of Appeals to decide the motion will run concurrently with other necessary work, so the motion does not require any additional time. Conversely, if you really want to slow things down, wait until all the work is done before filing the motion to consolidate. The motion may still be granted, but now everybody is waiting for the motion to be decided by the Court of Appeals, before the next step may be taken, for example, scheduling oral argument.

Correcting the trial court record

Throughout the course of litigation, each party maintains a copy of the trial court’s file and, on appeal, each party relies upon their file to get their work done, rarely knowing or suspecting that the trial court’s file – which is the all important record on appeal – is incomplete. If the trial court’s file is incomplete, the record on appeal is incomplete. If this problem is present, it is usually not discovered until very late in the process, and the time necessary to correct the trial court’s file may take a month or two, or even longer, if the parties dispute what is necessary or permissible to correct the trial court’s file. Although an incomplete trial court file is an uncommon occurrence, if you would rather be safe than sorry, this potential delay can be avoided by taking a trip to the courthouse early on, to inspect the trial court’s file. This way, any necessary corrections can be made early on, concurrent with other work, saving much time later on.

Conclusion

As you can see from the above discussion, it is possible to anticipate even the unusual events that may delay an appeal by several months, and to eliminate those occurrences before the delay is unavoidable. It is not always easy to do, however, and expediting an appeal may be counter intuitive. We have all become accustomed to waiting for deadlines, and following the prescribed or expected path. Your appeals lawyer will need to be both experienced and proactive, but in the right case, expediting an appeal can be highly desirable, and it will almost always save money under the theory that the longer litigation lasts, the more it will cost.