An appeal can be either a “last chance” to undo an unfortunate judgment or a struggle to preserve a hard-fought victory. Appellate practice is a distinct discipline requiring experienced practitioners and the highest quality of analysis, research and writing. Over the years, Smith, Gambrell & Russell, LLP has represented clients before the United States Supreme Court and federal and state appellate courts across the country in appeals covering a wide variety of substantive areas of the law. SGR formed its Appellate Practice Group to provide clients with the highest level of professional service in the handling of appeals. Our Appellate Practice Group handles appeals in all courts and works with other trial attorneys on appeals. It serves existing clients, clients who come to us for the first time to handle appeals, and clients seeking to participate in appeals as “friends of the court.”
Appellate practice is a distinct discipline – a “last chance” to undo an unfavorable judgment or to preserve a hard-fought victory. SGR represents clients in appeals before the United States Supreme Court and federal and state appellate courts across the country. We serve existing clients, clients who come to us for the first time to handle their appeal and clients seeking to participate in appeals as “friends of the court” in the filing of amicus curiae briefs.
Is trial advocacy different from appellate advocacy?
Yes, the skills needed in a trial court are different from those needed on appeal. A trial lawyer’s talent in a jury trial is best utilized in selecting a jury, persuading that jury, raising timely objections, examining witnesses and maintaining an active presence for the fact finder, whether that happens to be the judge or jury. These skills don’t often translate well into the appellate arena, especially as lawyers have become increasingly specialized.
The types of arguments that sway juries don’t often persuade appellate judges. And writing an appellate brief is fundamentally different from writing a memorandum of law or trial brief to a trial court. A good appellate brief, for example, is not one that merely scoops all of the issues raised at trial into a brief on appeal without first undertaking additional analysis, research and reordering.
What makes a good appellate lawyer?
Good appellate lawyers know how appellate courts operate and the issues that are important to appellate judges. Good appellate lawyers also understand that appellate judges will always try to (1) apply the correct standard of review to the merits of a case; (2) develop the law in the jurisdiction in a way that makes sense; and (3) create precedent that is consistent and helpful. Appellate judges are also always thinking about whether the decisions they make will open the floodgates to frivolous litigation, create even more issues that will drain the resources of future litigants as well as the courts, or confuse an issue of law in a way that will inhibit parties from resolving disputes using alternative methods of dispute resolution.
You could say that an appeal is a postmortem of sorts, except you have the rare opportunity, if you win, to bring your case back to life. Appellate lawyers try to do this by diagnosing the problems at trial, presenting them clearly, creatively and intelligently to an appellate court by dissecting and, at times, reassembling, the facts and the applicable law to present a persuasive argument to the court. And just as most postmortems aren’t performed by the treating physician, most appeals shouldn’t be prosecuted without the sound advice and counsel of an appellate lawyer.
After receiving an unfavorable outcome at trial, how do I decide whether it makes sense to appeal?
Appealing a case is a costly decision. We provide our clients with the estimated cost of pursuing an appeal, the expected duration of the appellate process and a forecast of the likelihood of success of their appeal. We do this by selecting which issues should be the focus of an appeal to ensure the highest probability of success. This process requires a careful review of the record. Appealing weak issues and including bad arguments in a brief can damage a client both by reducing the credibility of counsel to appellate judges as well as by wasting precious words and pages in a brief that could be better spent on issues that can be won. We know from experience, for example, that the best appeals seek to overturn just two or three issues, at most.
Should I add an appellate lawyer to my trial team?
In more complex cases you should seriously consider adding an appellate lawyer to your trial team to spot potential appealable issues early and ensure that legal arguments aren’t waived. Appellate counsel can also assist trial counsel present and preserve evidence in a manner that will help, should an appeal be necessary. An appellate lawyer can also assist with pleadings, dispositive pretrial motions, jury instructions and verdict forms. Moreover, by engaging an appellate lawyer at the trial level, you’re sending a strong signal to opposing counsel, as well as the trial judge, that you’re in this for the long haul and are serious about pursuing the case to the highest court if you have to.
Are there reasons to hire an appellate attorney who was not trial counsel?
Yes, here are three good ones.
FIRST, an appellate lawyer will look at the case with “fresh eyes” and, in that respect, she’s looking at it in the same way an appellate judge will. That perspective allows her to view the case more objectively than the trial lawyer who has lived and breathed it for a long time and who therefore may not be able to identify the more limited core issues that are winnable on appeal.
SECOND, an appellate lawyer understands what appellate judges care about. Of course, all judges, both at trial and on appeal, seek to apply the law consistently and correctly. But they confront issues before them from very different places. For instance, a trial judge is much more focused on the facts of the case at hand and, depending upon the stage of the case, has participated in its evolution. An appellate court, on the other hand, views the case for the first time when the judges start to read the briefs. On appeal, the parties have just one or two briefs, then an argument, to make an impression. That’s it, in most cases. The lawyer on appeal has to have the experience and skills to best take advantage of these opportunities that are limited by space and time.
THIRD, an appellate lawyer generally doesn’t have a personal stake in the arguments made and issues raised at trial, since he usually wasn’t on the trial team. As a result, he is in a better position to take a more dispassionate view about which issues to discard and which ones to keep – a decision that is essential to presenting a strong appeal. There is a significant cost to every issue or argument that’s briefed on appeal. Adding weak arguments to a brief can dilute the strong arguments and draw the court’s attention away from them.
Pui-Kwong Chan v. Baizhen Yang, Case No. 2016-1214 (Fed. Cir. 2017) (affirming Patent Trial and Appeal Board’s rejection of challenge to client’s patent application)
Bridges, Gonzalez and Alanis v. Empire Scaffold, LLC, Case No. 16-41493 (5th Cir. 2017) (affirming summary judgment in favor of SGR client under Fair Labor Standards Act)
In re GT Automation Group, Inc., 828 F.3d 602 (7th Cir. 2016) (adopting client’s position that appellant, as general unsecured creditor, lacked standing to appeal order at issue)
Old Republic National Title Ins. Co. v. RM Kids, LLC, 337 Ga. App. 638, 788 S.E.2d 542 (2016) (concluding that loss under lender’s title insurance policy is measured on date of foreclosure, not date the loan is made, reversing jury verdict)
In re Empire Scaffold, LLC, Case No. 09-16-00052-CV (Tex. Ct. App. 2016) (granting mandamus relief to client to strike petition to intervene in case against client)
Government Employees Ins. Co. v. Kisha, 163 So.3d 1266 (Fla. 5th DCA 2015) (reversing judgment based on collateral estoppel entered against insurance company)
Government Employees Ins. Co. v. Kisha, 160 So.3d 549 (Fla. 5th DCA 2015) (reversing judgment against insurance company on basis that length of time an insured was insured with company was not relevant and references to such constituted impermissible plea for sympathy to the jury)
Nicholas A. James v. Daniel K. Leigh and Kenny Leigh, P.A.,145 So. 3d 1006 (Fla. 1st DCA 2014) (reversing trial court’s denial of motion to dismiss defamation and breach of contract case with prejudice based on application of litigation privilege)
Town Sports International, LLC v. Ajilon Solutions, 112 A.D.3d 409, 976 N.Y.S.2d 53 (1st Dept. 2013) (reversing $3.3 million judgment against client on grounds that damages were speculative and not supported by evidence)
Presidio Networked Solutions, Inc. v. Taylor, 115 So.3d 434 (Fla. 2d DCA 2013) (reversing order requiring employer to retroactively reinstate employee’s health insurance policy without giving employer notice or opportunity to be heard)
Corey Airport Services, Inc. v. Clear Channel Outdoor, Inc., 682 F.3d 1293 (11th Cir. 2012) (setting aside verdict that client had participated in conspiracy to improperly influence awarding of government contract)
Crossing Park Properties, LLC v. Archer Capital Fund, L.P., 311 Ga. App. 177, 715 S.E.2d 444 (2011) (reversing summary judgment against clients on contract and fraud claims)
Neal Parker, et al. v. Schmiede Machine & Tool Corp., et al., 230 Fed. Appx. 878 (11th Cir. 2011) (affirmed federal district court’s grant of summary judgment in favor of client in toxic tort case alleging exposure to beryllium in defense aerospace manufacturing, concluding that the plaintiffs’ claims of duty to warn were barred by the “sophisticated user” defense, also known as the learned intermediary” doctrine, because the plaintiffs’ employer was a sophisticated user of beryllium; and affirmed the district court’s exclusion of the plaintiffs’ causation expert because the expert’s opinions were scientifically unreliable under Daubert)
R&J Murray, LLC v. Murray County, 653 S.E.2d 720 (2007), reconsideration denied 12/13/2007, cert. den’d 554 U.S. 935 (2008) (in a case of first impression, initially reversed the grant of summary judgment to the plaintiff, then upheld ruling for clients that plaintiff did not have a vested property right to obtain a landfill permit, and that construing the client’s solid waste management plan to exclude new landfills in the county was not economic protectionism violative of the Commerce Clause of the U.S. Constitution)
City of Atlanta v. Clayton County Board of Tax Assessors, 284 Ga. App. 871, 645 S.E.2d 42 (2007) (concluding that land owned by City of Atlanta for purpose of developing fifth runway at Hartsfield-Jackson International Airport was exempt from real property taxes)
In re Copper Antitrust Litigation, 439 F.3d 782 (7th Cir. 2006) (reversing dismissal of client’s complaint alleging that defendant participated in price-fixing conspiracy)
Hickson Corp. v. Norfolk Southern, 260 F.3d 559, 2001 and Nos. 03-5801; 03-5910; 03-5911 (2005) unpublished (reversed adverse judgment entered on a jury verdict in the Eastern District of Tennessee, then affirmed favorable jury verdict in second trial of environmental spill litigation)
Northpoint Technology, LTD. v. MDS America, Inc. and MDS International, S.A.R.L., 413 F.3d 1301 (Fed. Cir. 2005) (affirming finding of patent invalidity)
Hughey v. Gwinnett County, 278 Ga. 740 (2004) (in a case of first impression, reversing trial and appellate rulings against clients and holding that Georgia law required defendant to utilize the “highest and best practicable level of treatment under existing technology” in order to discharge treated sewage into Lake Sidney Lanier)
Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256 (11th Cir. 2004) (reversing summary judgment against client on client’s false advertising claim against competitor)
Hughey v. JMS Development, 113 F.3d 1493 (11th Cir. 1997) We had successfully sued a subdivision developer and established in the district court that discharges of sediment-laden stormwater from a construction site was prohibited under the federal Clean Water Act without a permit. Although the 11th Circuit reversed the district court, it did so on very narrow grounds, holding that the CWA does not prohibit a discharge from a construction site where (1) compliance with the no discharge standard is factually impossible; (2) no NPDES (National Pollutant Discharge Elimination System) permit exists; (3) the discharger was in good-faith compliance with local pollution control requirements that substantially mirrored the proposed NPDES discharge standards; and (4) the discharges were minimal. Our work on the case and related matters resulted in Georgia implementing strict stormwater permitting requirements for construction activities
State of Missouri ex rel. Classic III Incorporated v. Ely, 954 S.W.2d 650 (Mo. App. 1997) (case of first impression in Missouri, recognizing that client enjoyed reporter’s shield privilege in libel case under First Amendment)
In the matter of Munford, Inc., 98 F.3d 604 (11th Cir. 1996) (affirming summary judgment in favor of corporate director clients under business judgment rule)