Should You Appeal?

Litigants are motivated to appeal for various reasons. These may include financial considerations, a belief that the judge was biased or that trial counsel mishandled the case, a belief that justice has not been done, or simply a desire to "win." But deciding whether to appeal should always include consideration of the costs of an appeal (emotional and financial) and the probability of success.

Most litigants understand by the time they start considering an appeal that it is not an opportunity to re-try the case to a different court. But the importance of this cannot be overstated. The court of appeals does not weigh evidence or credibility, and it defers to the trial court's discretion on most types of rulings a trial court makes. Experienced appellate counsel can help decide whether an appeal is worthwhile.  

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Seventh Circuit: Ostrich "Not a Proper Model for an Appellate Advocate"

A recent opinion by Judge Posner for the Seventh Circuit includes the following text (complete with photos!):

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by  the picture below.)  The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.”  Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047  (7th  Cir. 1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).

Gonzalez-Servin v. Ford Motor Co., __ F.3d __ (7th Cir. 2011).  

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Ninth Circuit Cases Comprise "Staggering" 42% of Supreme Court Docket

The SCOTUSblog reports that cases the Supreme Court has accepted for review from the Ninth Circuit for its October Term make up a "staggering" 42% of the current docket (20 out of 48 cases), the highest percentage in at least nine years.

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Do Appellate Judges Suffer from "Decision Fatigue"?

This article in today's New York Times discusses how making lots of decisions wears a person down and affects the decisions he or she makes depending on factors such as the time of day.  As an appellate lawyer, one has to wonder how this phenomenon could affect the outcome of appeals. 

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Practice News on United States Court of Appeals for the Ninth Circuit

From a recent seminar: 

• Nearly all the Ninth Circuit judges read briefs and "excerpts of record" on iPads
• The judges do not preconference before argument
• The court has an overall reversal rate of less than 10%
• The dreaded "excerpts of record" will probably be eliminated within the next two years

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Wisconsin Supreme Court to Hear Appeal of $150 Sanction by Court of Appeals

Wisconsin court rules require the appellant’s lawyer to certify that an appendix to the opening brief contains “limited portions of the records essential to an understanding of the issues raised.”  The Wisconsin Court of Appeals regularly imposes $150 “summary sanctions” when it determines an appendix is insufficient.  The Wisconsin Supreme Court has agreed to hear an appeal from such a sanction by the state public defender’s office, which argues the practice violates due process, interferes with established lawyer discipline procedures, and relies on an unconstitutionally vague rule.  The public defender’s office argues it is unfair to impose what may appear to some as a reprimand for an ethics violation, based on subjective standards and without any opportunity for a hearing. 

Defense lawyers take case against documentation penalties to state high court

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Seventh Circuit Chastises Lawyer for Overlength Brief, Dismisses Appeal

Writing for the Seventh Circuit, Judge Richard Posner sharply criticized an Indiana lawyer for misrepresenting that his brief for the appellant complied with the 14,000 word limit when it actually contained 18,000 words.  Opposing counsel representing the appellee pointed out the violation in a footnote.  In response to an order to show cause why the brief should not be stricken and sanctions imposed, the lawyer explained that he had "inadvertently considered only the words included in the argument section."  Rejecting this explanation, the court emphasized that the rules are unambiguous regarding the parts of the brief that count toward the limit.  The court added that the brief was "rambling" and would be more effective if compressed to 14,000 words.  While it struck the brief and dismissed the appeal, the court stopped short of basing the dismissal on the rule violation alone, stating: 

The flagrancy of the violation in this case might well justify the dismissal of the appeal:  let this be a warning.  But in addition it is plain from the briefs that the appeal has no merit.  To allow time for the appellants to file a compliant brief and the appellees to file a revised brief in respons, and to reschedule oral argument, would merely delay the inevitable. 

The six-page opinion is posted here.

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