Record on Appeal

How to Make the Most of Being an Appellee

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.

Ninth Circuit Ranks Middle Among Circuits for Rate of Unpublished Opinions

The Volokhh Conspiracy recently had a post here on the rates of unpublished opinions in different federal circuit courts.  The post was based on a chart, available here, released by the United States Courts entitled: “U.S. Courts of Appeals—Types of Opinions or Orders Filed in Cases Terminated on the Merits After Oral Hearings or Submission on Briefs During the 12-Month Period Ending September 30, 2010.”

According to the chart, Circuit/Percentage of Opinions that are Unpublished for the relevant time period was:

4th Circuit/ 93.0%
3rd Circuit/ 89.8%
11th Circuit/ 89.6%
2nd Circuit/ 88.3%
5th Circuit/ 87.4%
9th Circuit/ 86.9%
6th Circuit/ 83.6%
10th Circuit/ 77.5%
8th Circuit/ 71.8%
1st Circuit/ 65.1%
DC Circuit/ 62.3%
7th Circuit/ 59.8%

At a 86.9% rate, the Ninth Circuit rated about mid-way through – but compared to the circuit court’s with lower rates of unpublished opinion still held a rather high rate.  In answering the question of why the rates vary, The Volokhh Conspiracy opined that “Published opinions take more time, so courts with smaller dockets should have more time to publish.”  A particular circuit court’s culture may also influence publication rates.

Appellate Civility in Briefing and The Big Dipper

In April, the Sixth Circuit Court of Appeals issued a decision in Big Dipper Entertainment LLC v. City of Warren, No. 09-2339, rejecting a constitutional challenged to a sexually orientated business – but more importantly, giving advice on appellate civility.

The underlying § 1983 action was brought by Big Dipper, a topless bar, against the City challenging certain ordinances that regulate the licensing and location of sexually oriented businesses as unconstitutional.  The ordinances mandated zoning restrictions on the location of such businesses.  The Sixth Circuit affirmed the district court’s grant of summary judgment in favor of the City.

According to the court, the case law reflects the reality that “Democracies need political debate more than they do topless bars in order to function.”  Slip. Op. at 3.

True, but the real reason we blog about this case is to note the Sixth Circuit’s discourse on civility in appellate briefs.  According to the court, Big Dipper criticized the district court’s analysis in “notably harsh terms” such as arguing that the district court “made no pretense of applying the proper summary-judgment standard,” calling the district court’s analysis “cursory,” and complaining that the lower court “chose to disregard the voluminous and detailed analysis’” of Big Dipper’s expert.  Slip. Op. at 6 (internal quotation marks omitted).

In response to these arguments, the Sixth Circuit stated:

“Arguments like these – which casually impugn the motives of the district court or, more commonly, opposing counsel – are regrettably common of late.  So we think it worthwhile to comment on them.  In our view, a party should think twice about questioning the district court’s integrity or that of opposing counsel.  That two persons disagree does not mean that one of them has bad motives.  And even in the worst cases, the better practice is usually to lay out the facts and let the court reach its own conclusions.”

We agree.  As professionals, remaining civil in our appellate briefs is just as important as civility in the courtroom.  The way to win an argument is by stating (rather than embellishing) the facts and analyzing those facts in light of the applicable law (see law school brief writing 101).  The Big Dipper may be composed of the seven brightest stars in the formal constellation Ursa Minor – but in this case the Sixth Circuit did not find that the stars shone so bright.

The Sixth Circuit's opinion is available here.