September 01, 2015

Four Tips for Managing Unfavorable Outcomes on Appeal

Paul W. Flowers

I suppose I shouldn’t have been surprised when I was asked to write this article. I was the appellate counsel of record on the wrong side of several high-profile appeals, including Chambers v. St. Mary’s School, 82 Ohio St.3d 563 (1998) (holding that negligence per se does not apply to violations of administrative regulations), Estate of Hall v. Akron General Medical Center, 125 Ohio St.3d 300 (2010) (effectively prohibiting res ipsa loquitur charges in medical malpractice actions), Erwin v. Bryan, 125 Ohio St.3d 519 (2010) (eliminating most John Doe substitutions after the statute of limitations expires), and Cullen v. State Farm Mutual Auto. Ins. Co., 137 Ohio St.3d 373 (2013) (requiring class certification to be proven by a preponderance of the evidence). And few Ohio Supreme Court decisions have produced a greater uproar within the civil justice system than Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216 (2003), which overturned the cash cow styled Scott-Pontzer v. Liberty Mutual Ins. Co., 85 Ohio St.3d 600 (1999). My co-counsel and I had felt quite confident about our chances while walking out of that argument, but we were sadly disappointed.

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