Certworthy

Planning for the 2021 conference began when COVID-19 was but a rumor. The conference was scheduled for February 4–5 in Nashville. It was going to be great. The committee lined up several Sixth Circuit and Tennessee appellate judges to participate. Leadership coordinated with the DRI Products Liability Committee, whose 1,000-person conference was scheduled for around the same time in Nashville.  And local Tennessee appellate lawyers arranged for a tour of the Tennessee Supreme Court.

But while we planned, COVID spread. Committee members lined up corporation counsel to participate on panels, obtained the speakers’ bios, and scheduled the presentations. The pandemic got worse. Then the committee started to work on marketing. The pandemic continued. September passed, then October. Surely the vaccines would be out before the end of the year … but they weren’t.

So, what about May? DRI moved the conference to the end of May, still planning on an in-person event. The committee scrambled to coordinate the schedule change with speakers and crossed fingers that the vaccines would quickly bring an end to COVID.

Then, on March 8, DRI concluded that our conference would have to be virtual. So, the conference plans were scrambled again. Not only were we not going to see each other in Nashville, but the conference leadership had to figure out whether a year into the pandemic, anyone would really spend a day-and-a-half watching an appellate conference in their pajamas. We thought not.

Despite all the adversity, what ensued was a tremendous success — a half-day conference with some of the best content from the full conference.

The conference began with a presentation moderated by Michael Wallace on remote oral arguments. The one-hour presentation went well beyond the typical advice: to dress as you would for a normal argument and check your internet connection. Instead, the panelists provided tips and suggestions based on significant experience from numerous virtual arguments. Deborah Hunt, Clerk of the Sixth Circuit, explained how her court transitioned to virtual oral arguments and the internal logistics necessary to make virtual arguments possible for the court.

Sixth Circuit Judge Danny Boggs followed with observations regarding various issues with oral arguments that he noticed both on the part of attorneys and the court. Indeed, Judge Boggs related that he had to convince a group of regular protestors outside the federal building where his chambers are located to shift the start time of their protest to avoid having spicy background noise when he asked questions during arguments.

Michael King, an appellate attorney with Carney Badley Spellman, chimed in with his passionately held views on what to do (and not do) during oral arguments, many of which he demonstrated during his own virtual presentation. Here are some of the highpoints among many more useful tips and suggestions:

• Focus on the camera, not the individual judges on your computer screen. Looking at the judges on your screen gives the impression that you are looking away.
• Turning away from the computer to look at notes results in your voice becoming harder to hear and breaking eye contact.
• Per Judge Boggs, “no fussy backgrounds.” Avoid backgrounds that include artwork, pictures, awards, and the like because the judges may get distracted.
• Do not use virtual backgrounds because they tend to end up eliminating gestures and glitching, which distracts the judges from your argument.
• Watch for nonverbal cues that judges want to ask questions because it is much harder for judges to interrupt a virtual argument.
• Consider having a room dedicated to virtual arguments with good lighting, cameras, monitors, and a clean background.
• Position your camera so that your head and face are above the midline of the screen instead of simply focusing on your face.
• Ensure that your gestures are not outside the camera frame.
• There was no consensus about standing or sitting for virtual arguments.

The next presentation addressed the strategic use of amicus briefs. Larry Ebner of Capital Appellate Advocacy moderated a discussion with Steven Lehotsky of Lehotsky Keller LLP and former chief litigation counsel at the U.S. Chamber of Commerce’s Litigation Center, and Richik Sarkar of Dinsmore & Shohl LLP. The conversation started with a discussion of U.S. Supreme Court amicus briefs, including who reads them and how to write an amicus brief that stands out to the reviewing law clerks. Mr. Lehotsky observed that having more than five amicus briefs at the cert stage may have the negative result that the reviewing clerk simply lumps all the briefs together in the pool memorandum that is circulated to the justices’ chambers.

Mr. Sarkar discussed the benefits and travails of having multiple parties join a single amicus brief in the U.S. Supreme Court or other courts. Most notable among the difficulties of having multiple parties on a single brief is coordinating arguments and limiting comments to ensure a harmonious brief.

The conversation then turned to using amicus briefs in state supreme court and the federal courts of appeals. The panelists agreed that the latter are especially ripe for amicus briefs because there are fewer briefs filed in the federal courts of appeals and they provide an opportunity for interested third parties to provide a public-policy perspective that may otherwise be overlooked.

The discussion ended with various, specific considerations including how to write an effective statement of interest, handling a party that refuses to consent to the filing of amicus briefs, addressing facts in amicus briefs, leveraging amicus briefs in support of your client’s position on appeal, and billing arrangements. The presentation on amicus briefs was a tour de force by experienced experts on amicus briefs and, in the opinion of this article’s authors, the best presentation on the subject that they had yet seen.

Lee Mickus of Evans Fears & Schuttert LLP then took over to address the gatekeeping role of the district courts under Federal Rule of Evidence 702. Mr. Mickus presented a master’s level discussion of the history and purposes of Rule 702, emphasizing the misconceptions that frequently cloud the district courts’ exercise of their crucial gatekeeping function with regard to expert evidence.

Mr. Mickus focused on the concerning trend that district courts are ignoring a critical component of their gatekeeping function. Under Rule 702, as Mr. Mickus explained, district courts are supposed to weigh the factual bases for an expert’s opinion as a part of their determination of whether that opinion is admissible. But, as highlighted by the presentation’s citation to several recent cases from courts across the country, judges are doing just the opposite; they are rushing past the admissibility question and instead punting to the jury questions concerning the factual underpinnings of an expert’s opinion.

What could have at first appeared as a niche issue was shown to be an overwhelming concern in just about any case with expert testimony. Indeed, as a pointed example, Mr. Mickus’s presentation showed that in just the past half-decade, hundreds of district courts around the country have repeated varying formulations of the same facially incorrect Rule 702 standard. Mr. Mickus concluded his presentation by highlighting the ripe ground this issue creates for appeal, so that the seminar participants left with an acute awareness of what to look for and how to craft an appeal on this issue.

The seminar ended with a panel discussion among experienced appellate practitioners on how to build an appellate practice. Conference Chair and Hanson Bridgett Partner Adam Hofmann led a discussion with Tillman Breckenridge, of Stris & Maher LLP; Mike King, of Carney Badley Spellman, P.S.; Mary Massaron, of Plunkett Cooney PC; and Juvaria Khan of The Appellate Project in a discussion of essential tools and strategies for building an appellate practice. The discussion included tips and strategies for promoting the appellate practice of members of underrepresented groups, a discussion which Ms. Khan, the founder of an organization committed to empowering law students of color to thrive in the appellate field, was a key contributor. As part of the DRI Cares initiative, the video of this portion of the appellate seminar is available to Appellate Project participants.

Despite the uncertainties of the virtual seminar format, the appellate seminar was a success on every measure. Attendance of more than 100 was triple what was originally projected and greater than our last in-person seminar! The material was excellent, and useful for attorneys at all experience levels. And you don’t need to trust our assessment of the seminar presentations — they are available on DRI on-demand under the Appellate Law Products folder. Presentations are $150 for non-members and half that price for members.

Matt is the chair of Warner Norcross + Judd LLP’s Appellate and Supreme Court practice group. He was program vice-chair for the 2021 DRI Appellate Advocacy Seminar. Matt also chairs DRI’s National Amicus Committee, which files amicus briefs in high-profile cases that address important issues for DRI and its members, including class-action defense and ensuring traditional limits on tort liability.

Adam is a member of Warner Norcross + Judd LLP’s Appellate and Supreme Court practice group. He regularly briefs and argues appeals in both state and federal courts, with a particular focus on appeals in complex commercial litigation. Adam has been a DRI member since 2017.

As appellate specialists, we practice in a profession becoming increasingly specialized. Twenty-seven states certify legal specialists, either through state programs, accredited private programs, or both, in more than four dozen areas of law. Except for appellate practice (certified in only six states) and trial practice (certified in 23), the certified specialties are in substantive areas of law, such as employment, bankruptcy or creditor’s rights, family or matrimonial law, professional liability, and the like. And even within the two procedural specialist areas, there are substantive-law distinctions. Every state that certifies trial specialists certifies civil and criminal trial specialists separately, and several of those also distinguish family law trial specialists from the other two. One of the states that certifies appellate specialists, Florida, certifies criminal and civil appellate specialists separately. (And California, while it does not draw a distinction in certification, examines civil and criminal specialists separately.)

A careful consideration of our limits as appellate specialists and what subject-matter experts can bring to an appeal is required, given one simple fact: When lawyers undertake representation on a subject in which specialists are certified, we owe our clients a duty of care based on a specialist’s knowledge. Rule 1.1 of the ABA Model Rules of Professional Conduct requires lawyers to “provide competent representation to a client.” The “specialized nature of the matter” is a factor relevant to necessary “knowledge and skill” required for a particular engagement, and hence to what is “competent representation.” Rule 1.1, comm. 1. “Expertise in a particular field of law may be required.” Id. Where such expertise is lacking, “association of a lawyer of established competence in the field” will be necessary. (Id., comm. 2.) Courts are becoming increasingly willing to hold nonspecialist attorneys to a specialist’s standard of care when they undertake a representation in an area. See Restatement (Third) of the Law Governing Lawyers § 52, Comment d (2000) (collecting cases).

Working alongside subject-matter experts (SMEs) in areas where there are recognized specialists is an ethical and practical necessity. Here are tips for going about it:

Stick to Your Lane: An appellate specialist is an expert on how to argue an appeal. But not necessarily what to argue on appeal—that’s where an SME comes in.

Serve as the Bridge Between the SME and a Generalist Court: An appellate specialist’s perspective as a substantive generalist can be useful, as it reflects the generalist perspective of appellate judges. Yet is also provides an opportunity to bridge that perspective with the expertise of the SME. Help the judges understand the dense set of caveats and complexities within which the SME operates, and also help the SME understand the need for a simple, clear, and compelling path through those complexities to a result that serves your client’s interests.

Let The SME Take the Lead on Policy:  The SME is almost always in a better position to understand the public policies implicated in a ruling, and the likely consequences of a new rule. Follow their lead. (Thus, the role of SMEs is even more critical in amicus practice.)

Partner with the SME on Tactics: Winning today’s appeal with a ruling that undermines the client’s position in the next case is a Pyrrhic victory. All arguments should be vetted by the SME with an eye toward what a win (or a loss) could mean in future cases and for our clients’ business operations, and the balance of rewards and risks of taking any particular position.

So where do we find an SME to partner with? As defense lawyers, there are two natural places to start. First, trial counsel. More often than not, trial counsel assume that their primary role on appeal is providing context to the cold, hard record. But as accurate as their perceptions may be about what “really” happened in the courtroom (or during pretrial), the record is truly cold. And hard. The context they can supply often has little relevance. But on the defense side, trial lawyers usually are already SMEs. All they need to do is shift their focus from their role as trial advocates to their role as counselors or advisors in their field of expertise.

A second place to look is the client. We are usually dealing with in-house counsel, many of whom are SMEs by virtue of their in-house role and sometimes their prior lives in private practice. Who better to advise you on the implications a ruling might have in the next case, or for business practices in general, than the client itself?

The third place we can look to is ourselves. The profession is becoming increasingly specialized. Being appellate specialists does not insulate us from that trend. Increasingly, clients are turning to appellate SMEs who combine both appellate and substantive expertise and generally limit their practice to appeals in particular areas. This trend makes sense. Combining appellate and subject-matter expertise on appeal allows a lawyer to do a better job at both roles — at a more reasonable cost.

The appellate SME is extraordinarily well-disposed to leverage policy advocacy beyond the amicus brief. They are uniquely positioned to advocate for future legal developments that will benefit defendants across industries, writing articles and giving speeches that can influence the nonspecialist bar to take positions in their cases that benefit the defense community and that can persuade judges to adopt positions favorable to defendants.

Every appeal is fraught with potential and peril for a defendant. A loss today can turn into 10 losses tomorrow. Even a victory today can turn into a loss tomorrow, if it is not the right victory. Appellate specialists need the help of SMEs to fully understand the matters at issue and minimize those risks for their clients.

Steven B. Katz, Certified Appellate Specialist, is a partner at Constangy’s Los Angeles office. His practice primarily focuses on class and representative federal and state wage and hour litigation, at the trial and appellate levels. He has handled appeals before the California Supreme and Appellate Courts, the United States Supreme Court, and the D.C., Third, Fifth, Ninth, Tenth, and Eleventh Circuits.

Jill S. Stricklin is a partner at Constangy, Brooks, Smith & Prophete LLC’s Winston-Salem, N.C. office. Her practice primarily focuses on complex employee relations issues, regulatory compliance, and litigation at the trial and appellate level. She has handled appeals before the North Carolina Supreme and Appellate Courts, as well as the Second, Fourth, Fifth, Seventh, and Tenth Circuits.

Steven and Jill are co-chairs of Constangy’s Appellate Practice Group.