How Long Will My Appeal Take?

Appellate lawyers are constantly asked (and asking themselves) some variant of the same question: “How long until we get a decision?” The reality is that it’s hard to know. Nevertheless, most will, after being pressed, venture a guess based on their informed experience.

To supplement our informed experience, we conducted an analysis of twenty-one recent civil decisions issued by the Massachusetts Appeals Court since March 1, 2017, as well as another ten Supreme Judicial Court decisions issued during the same time period.

Based on our review, we determined that it took a median of 418 days to resolve an appeal in the Appeals Court from start (notice) to finish (judgment). The median time for a decision in the SJC was 315 days. The data shows a breakdown in the Appeals Court cases as follows:

  • Less than 350 days: 2
  • 350-400 days: 4
  • 400-450 days: 8
  • 451-550 days: 3
  • More than 550 days: 4

These findings show that appellate litigants can expect that in most circumstances an appeal will last between 12 and 18 months, with the decision most likely to be issued 14 months after the appeal is filed.

We also determined that it took a median of 120 days for a decision following appellate argument in the Appeals Court. In the SJC, the median time was 118 days. The data shows a breakdown in the Appeals Court cases as follows:

  • Less than 100 days: 5
  • 100-125 days: 6
  • 126-150 days: 4
  • 151-200: 2
  • More than 200 days: 4

These findings show that appellate litigants can expect that in most circumstances they will receive a decision between 3 and 5 months after appellate argument.

For bonus points, we looked at the same data to ascertain the answer to another question commonly asked by and to appellate attorneys: “What does it mean that the court has taken a long time to decide?” To answer this question, we calculated the time from appellate argument to affirmance versus the time from appellate argument to reversal.

We found that the median time from appellate argument to affirmance was 120 days. By contrast, the median time from appellate argument to reversal was 146.5 days, a difference of 26.5 days. Thus, the data arguably shows that the longer it takes for a decision to be issued the likelier it is that the decision will reverse the lower court.

These findings, of course, only represent probabilities, and would be enhanced by a larger sample size. Nevertheless, they provide helpful empirical data to supplement our informed experience when projecting how long an appeal will take and what it means when the appeal takes longer than expected.

Appeals Court Oral Argument Pilot Program

In April 2017, the Appeals Court launched an oral argument pilot program that staggers attorney appearance times. This means that the “old days” of arriving at oral argument before 9:30 a.m. and waiting through a series of arguments before your case is called may soon be history. The pilot program organizes the oral arguments in three groups based on the order the cases are listed on the Court’s argument calendar. Parties for the first three cases must appear by 9:30 a.m., parties for the fourth and fifth cases must appear by 10:30 a.m. and parties for the final case(s) must appear by 11:00 a.m.

The pilot program includes most cases that are scheduled for argument at the Appeals Court from April through June. All cases included in the pilot program will receive notice of the staggered appearances. In the event you have an upcoming argument at the Appeals Court, and are unsure of whether you received such notice, each case included in the program has an Appeals Court docket entry stating, “Scheduling Update and Notice of Oral Argument Pilot Program sent.”

The oral argument pilot program is just one of the many recent Appeals Court initiatives aimed at making Massachusetts appellate practice more efficient. This program may streamline the oral argument process, saving both attorney time and client money. However, because the program will almost certainly curtail the extent to which attorneys are “forced” to watch their colleagues argue, this time consuming but valuable opportunity to observe and learn from other practitioners may no longer be easily accessible for busy attorneys.

For new appellate attorneys the opportunity to observe more experienced practitioners argue – the good, the bad, and the ugly – can serve as a crash course in seeing what works and what doesn’t before your turn at the podium. Even if you are ruminating over your case or silently rehearsing your best zinger during the other arguments, you nevertheless learn from the style and substance of other practitioners’ arguments by osmosis. Seasoned appellate attorneys have just as much to gain from watching others argue, including incorporating stylistic refinements into your oral argument repertoire. While practitioners are, of course, free to visit the Appeals Court and watch argument, the reality is that most attorneys do not have the luxury of observing hours of appellate argument unless they are already there waiting for their case to be called.

Beyond learning from other practitioners, watching earlier arguments provides a helpful opportunity to get a sense of the three-justice panel before your case is called. Is it a hot bench? What type of questions are they asking? What areas are they focusing on? Getting a feel for the justices on the day of argument is crucial because it is almost impossible for anyone other than Appeals Court frequent-fliers to argue before all, or almost all, of the twenty-five member court. This is particularly true given the recent wave of retirements and the influx of new justices (seven justices have been appointed since 2015 and more are on the way). Now even the most experienced Appeals Court practitioners will soon be arguing before unfamiliar justices.

How to Write More Effectively for the Electronic Reader

I chair the Appellate Law Section of the Federation of Defense and Corporate Counsel. Members of our section recently put on a great program on how to make legal briefs more effective for judges and law clerks who read them on electronic devices rather than on paper. While the Massachusetts state appellate courts still have not implemented electronic filing, the SJC posts briefs online,  the First Circuit has electronic filing, and some judges and justices (or their law clerks) may be reading your brief on an iPad or other similar electronic device. When reading on such a device, people tend to skim the text more, looking for visual cues and parts of the text to focus on more intently. Here are a few tips I gleaned from the FDCC program on how to make your brief more effective for someone who is reading a brief on an electronic device:

  • Use more headings, lists, and bullet points to guide the reader.
  • Use shorter paragraphs, with well-crafted topic sentences.
  • Use summaries that not only provide a roadmap but explain your key points concisely.
  • Use more white space (although when you have a page limit, rather than a word limit, this can be challenging). Electronic readers tend to focus more on the top portion of a page, so if you can, you may want to place the most important content at the top of a new page rather than the end of the previous page.
  • Consider visual aids, such as a photograph, chart, or side-by-side comparison, where appropriate.
  • Consider using hyperlinks, internal or external. There likely will come a day when it is standard procedure required by court rules to provide direct links in briefs to cases cited and to the appendix.

Most of these tips were key features of strong paper briefs before the advent of electronic readers. I think it is now especially important to keep these tips in mind for every brief you write.

Intent to Injure Can Be Inferred as a Matter of Law Barring Coverage Under a Homeowner’s Policy for Bodily Injury Expected or Intended by an Insured

On November 7, 2016, the Appeals Court heard oral argument for Liberty Mutual Fire Insurance Company v. Ryan Casey & Another (16-P-32).  Defendants Ryan Casey and Evan Williams appealed a Superior Court’s summary judgment decision in favor of Liberty Mutual Fire Insurance Company (“Liberty Mutual”) that concluded that the insured, Casey, expected or intended to cause William’s bodily injury as a matter of law. The Superior Court held that Liberty Mutual had no duty to defend or indemnify Casey or pay William’s medical expenses due to an exclusion in the policy for bodily injury “which is expected or intended by the insured.” The Appeals Court upheld the Superior Court’s decision on March 29, 2017.

William and Casey got into an altercation in a remote location. Casey punched and kicked Williams numerous times, leaving him seriously injured. Casey was indicted for the attacks and pled guilty to assault and battery by means of a dangerous weapon and assault and battery causing serious bodily harm. He was sentenced to a house of correction for 2 ½ years and probation.  Williams made a claim under Casey’s parent’s homeowner’s insurance policy with Liberty Mutual. The policy contained certain exclusions that stated that certain coverages did not apply to “’bodily injury’…[w]hich is expected or intended by the ‘insured’, even if the resulting ‘bodily injury’ . . . is of a different kind, quality, or degree than initially expected or intended.” It is that clause that the Superior Court judge determined excluded coverage for Casey and Williams. Continue Reading

Washington v. Trump: Insights for Appellate Lawyers

Is there anything appellate lawyers can learn from the recent high-profile telephonic oral argument held in the Ninth Circuit in Washington v. Trump? A Defense Research Institute Appellate Advocacy Committee teleconference recently endeavored to answer that question. The speakers were Mary Massaron and Jerry Ganzfried, and the moderator was Keith Whitson. Here are a few takeaways I gleaned from their presentation:

  • Appellate lawyers can sometimes find themselves in a bind when trying to seek expedited appellate relief. If you wait too long to file, it becomes more difficult to make the case that there is an emergency. But you need time to prepare high-quality papers. Burning the midnight oil may be the only solution here.
  • When you are questioned on an issue that is weaker for your side, one good strategy is to answer the question directly and move on quickly. One of the speakers quoted Justice Scalia as encouraging advocates to yield the indefensible ostentatiously.
  • When you have a procedural argument (such as whether the trial court’s order is appealable) that logically should be addressed first, but you anticipate the court may not be interested in dwelling on at oral argument, you may want to note that the issue is fully addressed in your brief and then state that unless the court has questions on that you will move on to your next point.
  • Appellate courts are often focused on which issues must be decided and how narrowly they might be able to write an opinion. Be prepared to offer alternative approaches that might soften the blow for your client if you do not win on all issues. You may need to clear those with your client in advance of the argument.

The SJC Defends Environmental Bloggers’ Right to SLAPP Back in Defamation Suit

In Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479 (2017), the Supreme Judicial Court held that the anti-SLAPP statute protected two bloggers’ critical opinions contained in a blog post directed at a scientific consulting firm working for British Petroleum (“BP”) in the wake of the Deep Water Horizon spill.

The defendant bloggers, two environmental advocates, published a blog post criticizing the scientific consulting firm’s analysis and reporting on the toxic effects of the spill on clean-up workers. The allegedly defamatory post criticized the consulting firm’s report for not “coming clean,” and for the firm’s history of defending polluters.

On direct appellate review, the scientific consulting firm argued that the defendants’ blog post was not protected by the anti-SLAPP statute because it did not involve a grievance that was personal to the defendants. The SJC flatly rejected this argument, concluding that the history of the constitutional right to petition and the anti-SLAPP law protect an individual’s right to petition, even if that individual is not the beneficiary of the particular cause they seek to advance.

Ask and you (might) receive . . . just don’t forget to ask!

Nestled in the Court’s opinion is also a helpful refresher on the importance of requesting appellate attorney’s fees and costs in your appellate brief as required by Fabre v. Walton, 441 Mass. 9 (2004). To successfully obtain attorney’s fees and costs you are required to do the following:

  1. You MUST request appellate attorney’s fees and costs in your brief. Failure to request fees and/or costs waives the right to either or both.
  2. If you prevail, you must file a submission detailing and supporting the attorney’s fees and costs sought. This normally means submitting detailed billing/time records and an affidavit detailing the attorney’s qualifications, reasonable hourly rates and hours expended on the appeal.
  3. The Court will grant the opposing party a reasonable opportunity to respond to the petition for appellate fees and costs (usually fourteen days).
  4. Generally, the Court will grant the fee and cost application, or some portion thereof, without an additional hearing.
  5. Any party aggrieved by the decision can request reconsideration.

What happens if a party does not request appellate fees and costs in their brief? While the request is technically waived, the Court may exercise its discretion to award fees and costs, but it will exercise this power “sparingly.” Beal Bank, SSB v. Eurich, 448 Mass. 9, 12 (2006) (emphasizing that making the fee and cost request in the brief is “imperative” and failure to do so constitutes waiver). This procedure applies to both the Appeals Court and Supreme Judicial Court.

Chapter 93A Damages Do Not Include Post-Judgment Interest Accrued on an Underlying Judgment

Addressing an issue of first impression, the Supreme Judicial Court (SJC) announced last week that an insurer’s liability for multiple damages under Chapter 93A for unfair claim settlement practices committed in violation of Chapter 176D does not include the post-judgment interest accrued on an underlying judgment. Anderson v. National Union Fire Ins. Co. of Pittsburgh PA, No. SJC-12108, 2017 Mass. LEXIS 25 (Feb. 2, 2017).

The decision is among the first authored by Justice Gaziano, who was elevated to the SJC this past summer. The appeal was argued by Kathleen M. Sullivan, former dean of Stanford Law School and current partner at Quinn Emmanuel, for the appellants, and Leonard H. Kesten of Brody Hardoon Perkins & Kesten LLP, for the appellees.

Facts

Briefly, a Massachusetts jury awarded the plaintiff damages for the injuries he sustained when he was hit by a bus while crossing Staniford Street in Boston. The judgment was for $2,244,588.93, including $1,569,330 for the plaintiff’s actual damages (after a reduction for comparative negligence) and approximately $450,000 of prejudgment interest. The defendant bus company appealed the jury award and lost. Accordingly, the plaintiff ultimately received an additional $1,284,243.17 for post-judgment interest accrued during the pendency of the appeal.

In a separate third party coverage action, the plaintiff sued the bus company’s insurer for unfair and deceptive trade acts or practices in violation of Chapter 93A, based on the insurer’s failure to effectuate a prompt, fair, and equitable settlement once the bus company’s liability became reasonably clear, in violation of Chapter 176D. After a ten-day jury-waived trial, the judge sought to impose the “maximum available sanctions” against the insurer after finding it knowingly and willfully violated Chapter 93A. In an amended judgment, the trial court awarded the plaintiff three times the amount of the underlying judgment, inclusive of post-judgment interest (i.e., 3 x $3,252,857.80). After losing in the Appeals Court, the defendant insurer petitioned the SJC to reverse the entry of judgment, insofar as it included in its calculation of multiple damages the post-judgment interest accrued on the underlying judgment.

Issue

The sole issue before the SJC was whether the trial court properly included the post-judgment interest accrued on the underlying judgment in its calculation of the punitive damages award. In other words, the question presented was: after finding a violation of Chapter 93A and determining that the maximum possible sanctions were warranted, should the trial court have trebled the underlying judgment with post-judgment interest (i.e., $3,252,857.80) or without (i.e.,  $2,244,588.93)?

Decision

The SJC started its analysis by acknowledging that the statutory language in Chapter 93A (G.L. c. 93A, § 9), which refers to multiplying “the amount of judgment,” does not provide express guidance on whether the “judgment” should include post-judgment interest. To resolve that question, the Court looked to the pre-judgment and post-judgment statutes themselves.

The statute governing pre-judgment interest, G.L. c. 231, § 6B, provides that, in a tort case involving personal injury or damage to property:

[T]here shall be added by the clerk of court to the amount of damages interest thereon … from the date of the commencement of the action.

By contrast, the statute governing post-judgment interest, G.L. c. 235, § 8, provides that:

Every judgment for the payment of money shall bear interest from the date of its entry …

The SJC found it significant, and ultimately dispositive, that whereas the pre-judgment interest statute states that the interest is added to the judgment, and is therefore part of it, the post-judgment statute states that the interest bears on the judgment, and is therefore distinct from it.

The Court also noted in its decision that the Massachusetts form of executions (see G.L. c. 235, § 8) distinguishes between a judgment and post-judgment interest, as does Mass. R. Civ. P. 54(f), which sets forth the rules for computing post-judgment interest. Moreover, the Court noted that while the purpose of the pre-judgment statute is to compensate claimants for their loss, the purpose of the post-judgment statute is, by contrast, in part to discourage frivolous appeals.

Finally, the Court cited the rule of lenity, an arcane canon of statutory construction providing that ambiguous penal statutes should be construed narrowly in favor of the defendant. This last justification is noteworthy in light of the SJC’s frequent characterization of Chapter 93A as a remedial statute, which according to another canon of statutory construction, means that it should be interpreted broadly to achieve its desired effects. See, e.g., Kraft Power Corp. v. Merrill, 464 Mass. 145, 162-63 (2013).

The effect of the SJC’s ruling in Anderson is to give clarity to the measure of damages under Chapter 93A. When such damages are based on an underlying judgment, any post-judgment interest is excluded from Chapter 93A liability.

First Circuit Clarifies Scope of Duty to Defend and Indemnify Under a Standard Form Homeowner’s Policy

In a recent, precedent-setting opinion, the First Circuit Court of Appeals addressed several significant issues involving liability insurance coverage. Sanders v. Phoenix Ins. Co., 843 F.3d 37 (1st Cir. 2016).[1]

As characterized by Judge Selya, the facts of the case begin with “a tragic tale of unrequited love and morph into a series of imaginative questions regarding the coverage available under a standard form homeowner’s insurance policy.” The claims were brought by the plaintiff, as executor of his wife’s estate, pursuant to an assignment of rights, for liability coverage and unfair claim settlement practices under a homeowner’s policy issued to his late wife’s divorce attorney, whom the plaintiff blamed for her untimely death.

The central holdings of the decision are:

  • There is no duty to defend where no lawsuit has been filed against the insured under the policy language at issue, and a Chapter 93A demand letter is not the functional equivalent of a suit;
  • A request for participation in a voluntary mediation does not trigger a duty to defend;
  • There is no duty to indemnify where there is no duty to defend, and also where there has been no final judgment against the insured or settlement agreement signed by the insurer (under the applicable policy provisions);
  • There is no duty to settle under Chapter 93A where there is no duty to defend or indemnify; and
  • Liability is not “reasonably clear” under Chapter 93A, as a matter of law, where the nature of the claim being made against the insured has not been recognized by existing law, but rather is an adventuresome claim not recognized by existing tort law.

The decision, which was featured in Massachusetts Lawyers Weekly, should prove useful to attorneys and parties because it lends clarity to these common issues in liability coverage cases.

SPECIAL DISCLAIMER: Because this case is one in which Robinson & Cole LLP represented the defendant, we reiterate that the intent of this blog is to serve as an informational resource for readers, not advertising for our legal services. Every case is different and the result achieved in the case described above may differ from the result in some other case, which may involve different facts, different applicable law, or a different jurisdiction. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case undertaken by the same lawyer(s). This blog does not constitute legal advice and you should always consult your own lawyer about your own case.

[1] Robinson + Cole lawyers Wystan Ackerman and Jonathan Small represented The Phoenix Insurance Company in the Massachusetts Federal District Court and on appeal to the First Circuit.

Not Quite a Final Judgment: Steering Clear of the Perils in Filing a Notice of Appeal

The Massachusetts Appeals Court recently decided two issues of first impression in a case arising out of a mediated settlement gone bad. See ZVI Construction Co. v. Levy, 90 Mass. App. Ct. 412 (2016) (“ZVI”). The court determined that there was no fraud exception to a written mediation confidentiality agreement, and that one party in a joint representation cannot unilaterally waive the attorney-client privilege.  An issue that received less acclaim, but which is essential to any practitioner considering an appeal, was the court’s discussion of the timeliness of a notice of appeal under Massachusetts Rule of Appellate Procedure 4.

In ZVI, the appellant filed a noticed of appeal after all claims against the primary defendants were dismissed.  However, claims against other defendants remained, meaning that final judgment had not entered. Accordingly, ZVI’s notice of appeal was premature. This procedural defect came to light when the Appeals Court raised the issue at oral argument. The court allowed the parties to return to Superior Court to file a joint motion for entry of separate and final judgment under Mass. R. Civ. P. 54(b).  After separate and final judgment entered, ZVI should have filed a new notice of appeal; it did not. The Appeals Court noted that ZVI failed to make good on its second chance by not filing a new notice of appeal after separate and final judgment entered. Therefore, the case was not properly before the court. Nonetheless, the Appeals Court chose to breathe life back into the procedurally deficient appeal to resolve the important and fully briefed issues.

Continue Reading

What Will The Courtrooms Of The 2020s Look Like?

I recently attended a presentation by futurist Michael Rogers that sparked me to think about what the courtrooms of the 2020s might look like. According to Rogers, one of the next big advances in technology will be augmented reality devices, such as smart glasses. Google previewed that with its “Google glass” product, which was unsuccessful but probably because it was before its time. The technology will be able to provide you with a screen within your field of vision that will display content visible to you if you are wearing the glasses, but not others.

This may take litigation practice to the next level. Earlier this week I argued a case in the First Circuit. In preparing for such an argument, we all try to read many cases and pack as much information as possible into our memory. Five or ten years from now, more or less, a lawyer arguing a case might well be able to use this technology to aid his or her memory, so that if a judge asks during the argument about a particular case, your notes about that case, the key section of that case, and/or a thought about that case conveyed by your co-counsel may appear on screen in your field of vision, assisting with your real time response and augmenting your own memory. To be most effective, the computerized system would need to itself understand the question being asked and instantly display the relevant information. The same type of information would be displayed automatically if a question were asked about a particular aspect of the appellate record. A tech-savvy judge might have the same type of information automatically appear on a screen in front of him or her, perhaps along with another question suggested by his or her law clerk or a thought conveyed by another judge on the panel. In essence, human memories will be supplemented and collaboration enabled, in real time, by technology, perhaps taking the practice of law and judging to the next level. We still may not all have the “total recall” that Chief Justice Roberts had in his days as an advocate, and there still will be plenty of human expertise and skill involved in deciding how to use the information made available in one’s field of vision, but technology may make lawyers better advocates and judges better at judging as well. And some of us may be getting to the courthouse in our autonomous vehicles (flying like the Jetsons may take another decade or two beyond that). That is unless video conferencing becomes so close to being physically present that travel to the courthouse becomes a thing of the past.

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