Appellate Advocacy

Global changes underscore the need for lawyers to develop new skill sets to add value to their services and assist clients in obtaining meaningful appellate review when arbitration goes awry.

It is a truism that we live in a global world. One manifestation of globalism is the increasing use of arbitration in commercial transactions. In 2010, one in seven U.S. companies undertook at least one international arbitration. 2010 Fulbright Litigation Trends 7th Annual Survey. Not surprisingly, corporations from one jurisdiction are reluctant to use the courts of another jurisdiction as a forum for resolving their disputes. They have concerns about the impartiality of the courts, mastering the complexities of a different legal system, and finding a lawyer to represent them there. Arbitration offers an increasingly used solution to these problems.

In the 1938 Russian film "Alexander Nevsky," the eponymous military genius, recruited to protect Russia against invading Teutonic knights, is asked to propose a strategy for defense. "Defense?" scorns Nevsky. "I know nothing of defense. We shall attack!"  

When you are representing an appellee (or respondent, or real party in interest, depending on the proceeding or the forum), it's tempting to think only in terms of defense. After all, you hold the high ground. The trial court or jury decided in your client's favor. The appellant has the burden of showing reversible error. The standard of review (with few exceptions) favors the appellee. So why not let the appellant take the lead, and just meet the appellant step-for-step? That's probably why so many appellees' attorneys organize their briefs as simple responses to the appellant's opening brief. They adopt the same issues the appellant frames.   They organize their arguments in the same order as that in the opening brief. Some even adopt the appellant's statement of the case, fact statement, and standard of review by reference.

Any appellate lawyer practicing in the federal courts is keenly aware of the fundamental requirement of subject matter jurisdiction. A timely notice of appeal is a prerequisite to an appellate court's jurisdiction and, absent an extension of time to file an appeal provided by the district court, a federal appellate court is without discretion to review an untimely appeal. Indeed, under 28 U.S.C. § 1291, a timely notice of appeal is a mandatory and jurisdictional prerequisite which a circuit court can neither waive nor extend. Thus, as appellate lawyers we carefully calendar dates of entry for final judgments and corresponding due dates for notices of appeal, while making note of due dates for any postjudgment motions which otherwise toll the time to file an appeal.