Hon. Kathleen McDonald O'Malley
U.S. Court of Appeals for the Federal Circuit, Washington, D.C.
It is true that appellees have significant advantages on appeal. Defending the decisions of a thoughtful jurist or, better yet, a properly charged jury is always easier than having to attack those judgments.
By following the advice Ms. Ambrose gives, appellees will be well on their way to “making the best” of their appellee status. Appellees must, however, take care to protect the benefits that accompany their status as trial victors.
To remain well positioned on appeal, they must establish themselves as trustworthy authorities on the facts, the law, and the record.
First, appellees must resist the temptation to overstate their case. No complex civil trial proceeds without missteps. Indeed, despite my 16 years as a district judge—and, thus, having had many chances to get it right—I am confident I never presided over an error-free trial.