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.
Now it is only fitting that I offer some wisdom for those of you who routinely win your appeals but have grown concerned that perhaps an adverse ruling looms in your future. The following are a few simple rules that have guided my practice ever since I awoke to the realization that accepting difficult cases dooms any chance of maintaining a sterling appellate win-loss record.
1. Promise Nothing
At no time during the course of my consultations with the clients or referring trial counsel do I ever offer any guarantees of success. I will offer ballpark estimates of the odds of a successful outcome, which is always rooted in the familiar statistic that the trial court is affirmed roughly 90 percent of the time. From that figure I’ll make modest adjustments based on the nature of the proceedings, such as when summary judgment has been granted (better chance of reversal) or a timely objection was not raised (little chance of reversal). Although perhaps this rule has cost me an appeal or two, I have never found myself responsible for a disappointed client’s unrealistic expectations.
2. Run Scared
While drafting my brief and preparing for oral argument, I continually remind myself that any appeal can be lost. Overconfidence causes many attorneys to overlook, or fail to appreciate, issues that later become the basis for the decision. Nothing is worse than not only receiving an adverse ruling but also realizing that a proper response to the position was never furnished. I always review an adverse trial court ruling and the opponents’ filings during several different sittings, including while one of the final drafts of my brief is being typed. More often than not, I will find an argument or two that I either missed or misunderstood. When all the issues have been covered as thoroughly as reasonably possible, there should be no legitimate reason for blaming the appellate attorney who receives an unfavorable ruling.
3. Make No Assumptions
Having handled more than 200 appeals, I have developed the firm conviction that little can be predicted from oral argument. What may seem like friendly, insightful questioning may actually be the court’s way of affording the attorney one last chance to talk the panel out of a preliminary decision. Sometimes lawyers are asked no questions at all because the judges are in full agreement with their positions, and sometimes because the effort does not appear to be worthwhile. I always try to resist gauging the panel’s leanings during argument; I focus instead on advocating my positions during the limited time afforded. And once the proceeding has concluded, I never, never join in any speculation over who won and who lost. Such prognostications frequently prove to be wrong, which will then require a difficult explanation to the client.
4. Don't Overreact
Any lawyer who truly cares about the client will experience a range of emotions once an adverse ruling has been received, and the natural response is to lash out at the court. Blaming the judges for failing to read the briefs or listen during oral argument will likely cause the client or referring trial attorney to question the appellate lawyers’ competence. In the overwhelming majority of appeals, however, the issues are not cut-and-dry, and legitimate room for disagreement exists. Although I immediately alert everyone concerned that a decision has been released, I try not to discuss the court’s reasoning until I’ve had a substantial period for reflection. Intelligently discussing the basis for the opinion not only can help restore confidence in the appellate lawyer but can lay the groundwork for rectifying the situation. Little will be gained by firing off a virulent motion for reconsideration or immediately commencing an appeal to a higher authority.
Restraint is particularly important when an appeal is being publicly followed. As I experienced in the wake of Galatis, media and legal journal reporters monitor the Supreme Court’s daily decision list closely and expect a public comment from counsel before their publication deadlines expire. Venting anger and frustration on the court is not just unprofessional but also potentially detrimental to the client. If a public comment is necessary, respectful disappointment coupled with optimism for future improvements in the law is perfectly appropriate.