September 30, 2013 Articles

Cross-Appeals: Party Postures and Strategic Considerations

Young Lawyer's Corner: A primer on the many nuances of mixed appeals.

By Jennifer L. Swize

Civil litigation, by its nature, produces winners and losers. Appeals afford the losing party an opportunity to correct what it perceives to be a mistake in the judgment. But there is not always one clear winner and one clear loser. Even in a straightforward case with a single claim against a single defendant, the outcome can be split, such as a judgment of liability accompanied by an award of only minimal damages. And many other cases involve multiple parties or counterclaims or cross-claims, for which the overall results can be mixed. In any such case in which the judgment is not entirely one-sided, the cross-appeal mechanism allows each disappointed party to appeal the portion unfavorable to it, with all but the initial appeal being known as “cross-appeals.”

For new lawyers confronting their first cross-appeal, the procedures can be unfamiliar and complicated, yet it is important to be mindful of the rules. Fortunately, if you are new to cross-appeals, there is considerable guidance in the Federal Rules of Appellate Procedure, thanks to Rule 28.1, a provision added in 2005 to specifically address cross-appeals. Rule 28.1 responded to decades of minimal provisions governing cross-appeals and the resulting development of different and conflicting procedures in the individual circuits. Although some circuits, consistent with their authority under the rules, have slightly modified Rule 28.1, these modifications have been at the margins. As a result, the rule has realized its drafters’ intention by establishing largely uniform procedures for cross-appealed cases.

The procedures affect more than the technical aspects of a cross-appeal. They are worth consulting with a strategic eye and as soon as a mixed judgment is entered. Under the rules, a party may wait to appeal after finding out if the other side appeals, or it may prefer to appeal as soon as possible to maximize its likelihood of being the lead appellant—a designation accompanied by more briefing space and the chance to file the first brief and speak first and last at oral argument.

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