In the most recent issue of Litigation, the journal of the ABA’s Litigation Section, there is an interesting article entitled “Making the Best of Being an Appellee” that provides several practice pointers for parties to an appeal – if you are an appellee.
(1) Tell your own story: in other words, don’t let the only version of the facts be those set forth by the appellant in the opening brief;
(2) Don’t let the appellant set the stage: for example, rather than address the points on appeal in the exact same order as the appellant, put your strongest argument first;
(3) The standard of review is usually in your favor: we’ve heard many appellate judges speak on the standard of review and its importance on appeal regardless of which side you’re on, but if you’re the appellee it is especially powerful since most standards offer deference to the lower court’s decision (i.e. the one in your favor);
(4) Any valid reason to affirm will do: in other words, look for the alternative grounds under which the appellate court may affirm the judgment – and (as this blogger learned during her stint as a law clerk in two courts of appeals), sometimes the easiest avenue to affirm is the one the court will take;
(5) Watch for waiver: as the appellee, always ask whether the issues or arguments presented by the appellant have been waived on appeal for failure to raise them in the lower court;
(6) No harm, no foul: this is also known as the harmless error standard – keep in mind that even if a trial court erred, if the error is harmless, the appellate court will affirm;
(7) Take advantage of being second at oral argument: listen to the questions asked by the judges to your opponent to get an idea of what the court is concerned about or interested in, then address those points first when it’s your turn.
The article also includes a list of stats (compiled on the back cover of the issue), which confirm what all appellate attorneys know: very few cases are reversed on appeal. For example, in 2011 (the most recent year for which the stats were compiled for the article), the percentages of reversals in the twelve federal courts of appeals ranged from 5.2% to 15%. The D.C. Circuit Court was responsible for the most reversals. The range for the other eleven circuits topped at 11.8% (our own Ninth Circuit), with the low reversal rate coming from the Tenth Circuit.