Appellate Strategies: Oral Argument Tips From Recent ABA Program

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I recently listened to an ABA Section of Litigation Roundtable entitled ““Appellate Practice: How to Grab, Keep, and Kill the Panel’s Attention During Oral Argument.”  The program featured advice from Judge Andre Davis, Senior Judge for the U.S. Court of Appeals for the Fourth Circuit, and Judge Kem Frost, Chief Justice of the Fourteenth Court of Appeals in Houston, Texas.

Here are a few takeaways I picked up from the judges’ advice:

  • Set the Stage: As the appellant, try set the stage for your argument by explaining that you have usually 2 or 3 points to make. If you set the stage right, the panel might not interrupt your first 90 seconds. This also may allow you to take the argument in the direction you want it to go, if the panel will go along.
  • Show the Path: Show the court the path to the rule that you want the court to adopt. Remember that the judges are thinking about not merely resolving your case but the legal impact on future cases, and potential limiting principles and slippery slope concerns.
  • Help the Court Write the Opinion: While the judges may come into the oral argument with a strong view of how the case should be decided, oral argument can frequently have a real impact on how the opinion is structured and reasoned. An advocate who does not prevail can sometimes help make the result less harmful to your client’s interests in future cases.
  • Take On Your Weak Points: Take on the adverse authority and difficult parts of the case directly with the best response you have to them.
  • Know When to Sit Down: Read the bench. When the court has heard enough, end your argument before your time has expired.
  • Have a Moot: Always have at least one moot. You never want the first time you are trying out your argument to be in the appellate court.
  • Don’t Call Names: Generally refer to the lower court as the district court or trial court, rather than referring to the lower court judge by name. As the appellant, you are attacking the ruling, not the person who made it. You never want to be perceived as criticizing the trial judge personally, and the appellate judges want to avoid that as well.
  • Get Help From Your Team: Bring other lawyers on your team to the oral argument where appropriate, and do not hesitate to ask the panel for a few seconds to consult with a colleague if a question arises that you are uncertain about.

An Attorney’s Affidavit Can Cure a Defective Mortgage

On February 9, 2016, the Supreme Judicial Court heard oral argument for Bank of America, N.A. v. Debora A. Casey (In re Pereira), 791 F.3d 180 (1st Cir. 2015). The United States Court of Appeals for the First Circuit certified the following questions to the Massachusetts Supreme Judicial Court:

  1. May an affidavit executed and recorded pursuant to G.L. c 193, § 5B, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor, correct what the parties say is a material defect in the Certificate of Acknowledgment of that mortgage?
  1. May an affidavit executed and recorded pursuant to G.L. c 183 § 5B, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor, provide constructive notice of the existence of the mortgage to a bona fide purchaser, either independently or in combination with the mortgage?

It was the trustee’s position that the attorney’s affidavit could not cure such a defect because a defective mortgage cannot be legally recorded in the first place and, therefore, it cannot provide constructive notice in the registry of deeds of the encumbrance on the property. It was the bank’s position that an attorney’s affidavit can cure both substantive and technical defects in the mortgage, and, at the very least, the affidavit provides constructive notice of the mortgage good against a bona fide purchaser for value.

The Supreme Judicial Court affirmed the district court judge’s decision in Bank of America, N.A. v. Debora A. Case (In Pereira), 517 B.R. 1 (D. Mass. 2014), holding that the affidavit executed pursuant to G.L. c 183, § 5B was sufficient to cure the material defect in the acknowledgment, thereby making the mortgage properly recorded. As the attorney’s affidavit supplied the missing information, confirmed that all the steps necessary to acknowledge were properly taken, attested the omission of the mortgagers’ names was inadvertent, and referenced the book and page number of the previous recorded mortgage, the Court held that the affidavit cured the defect in the acknowledgment.  The Court further explained that nothing in the language of G.L. c. 183, § 24 states or implies that the statute defines the exclusive permissible method of curing any and all defects that may exist in an acknowledgment.  While acknowledging that the omission of the name of the mortgagor in an acknowledgment does indeed constitute a material defect, and that defect should operate to preclude the legal recording of the mortgage, the Court determined that a properly executed and recorded attorney’s affidavit filed and recorded operates to cure the original defect in the acknowledgment. The curing of the defect in the acknowledgment also cures the defect in the original recording of the mortgage, and the mortgage thereafter is properly considered within the mortgage property’s chain of title.

Furthermore, the Supreme Judicial Court held that the affidavit together with the mortgage provided legally adequate constructive notice to a bona fide purchaser. Under G.L. c. 183, § 4, constructive notice arises by operation of law when a mortgage is properly recorded. Because the prior recording of the mortgage had been remedied by the attorney’s affidavit, and thus deemed proper, the affidavit together with the mortgage provided legally adequate constructive notice to the bona fide purchaser.

First Circuit Dismisses Fabrazyme Suits Without Prejudice To Re-filing

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In an unusual ruling in a closely-watched case, the First Circuit Court of Appeals has affirmed a District Court’s dismissal of most of the plaintiffs’ claims, but on new grounds which will potentially allow the plaintiffs another bite at the product liability apple. Hochendoner v. Genzyme Corp., Nos. 15-1446, 15-1447( May 23, 2016).

The cases before the First Circuit were two putative class actions seeking damages against a Massachusetts manufacturer based on a variety of tort theories, all stemming from the production (and mis-production) of a life-saving drug.

Fabry Disease is a rare genetic disorder which, left untreated, will cause progressively more severe symptoms, eventually leading to premature death. A replacement enzyme (named “Fabrazyme”) that treats (but does not cure) Fabry was brought to market by the defendant Genzyme Corporation.  Fabrazyme is the only FDA-approved enzyme replacement therapy for the treatment of Fabry.

Genzyme provided the drug to Fabry patients until 2009 when serious contamination issues were discovered in its manufacturing facility.  In addition to the distribution of contaminated product, a Fabrazyme shortage resulted which caused rationing of the product in the United States; even this reduced supply was subject to intermittent interruptions. Despite setbacks in reestablishing American production levels, in 2011 Genzyme diverted some Fabrazyme to the European market, allegedly to respond to market competition there.  A proliferation of litigation followed, including the two putative class actions at issue here.

After consolidation, the defendant moved the District Court (Woodlock, J.) to dismiss the complaints on the ground that they failed to state an actionable claim (Fed. R. Civ. P. 12(b)(6)).  The problem was that the complaints did not adequately connect the tort theories alleged with clear causal chains leading to cognizable harms.  The District Court distilled the theories into three categories (the Fabrazyme shortage caused a progression of the disease, the shortage caused the disease to accelerate, and tainted supply), but held that, in the end, the complaints either failed to link particular plaintiffs with particular harms, or impermissibly relied on the underlying theory that Genzyme had a duty to supply the market with Fabrazyme.

The First Circuit did not expressly disagree with the District Court’s approach, but held that the issue presented a question of Article III standing, not adequate pleading under Rule 12(b)(6).  Holding that “[a]t the pleading stage, the plaintiff bears the burden of establishing sufficient factual matter to plausibly demonstrate his standing to bring the action,” the Court held that – with one exception – the complaints before it failed this standard:

Tellingly, no specific information is provided regarding the harm, if any, that has befallen each individual plaintiff. Instead, the complaints offer only scattered descriptions of generalized harms.

One plaintiff – James Mooney – escaped the Court’s scythe. He claimed that ingestion of diluted doses of Fabrazyme during the shortage caused him to suffer a life-threatening allergic reaction when he was finally able to resume a full dose of the drug. The Court held that these allegations were sufficiently particular to give Mooney standing to sue.

The rose in the thorns for the plaintiffs is that, by dismissing the actions on Article III standing grounds, the First Circuit has breathed new life into the litigation.  Whereas the District Court’s dismissal for a failure to comply with Rule 12(b)(6) had sounded the death knell for these cases, a dismissal for lack of standing is remediable, operating as it does without prejudice. These plaintiffs may very well get another chance to make their case.

Photography by Marcin Piętka, some rights reserved.

INTERVIEW WITH FORMER SJC ASSOCIATE JUSTICE CHARLES FRIED – PART I OF II

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Charles Fried is, by any measure, a pre-eminent legal scholar and American jurist. He served as an Associate Justice of the Massachusetts Supreme Judicial Court from 1995-1999. Prior to that, he was Solicitor General of the United States from 1985-1989. He has argued numerous major cases in state and federal appellate courts, including Daubert v. Merrell Dow Pharmaceuticals, in which the United States Supreme Court established the standards for the use of expert and scientific evidence in federal courts. He has also been a member of the faculty at Harvard Law since 1961, and is the author of nine books and more than 30 journal articles.

Professor Fried recently spoke to Massachusetts Appellate Blog about appellate practice and his advice for Massachusetts appellate lawyers. In this, the first of two posts recounting that discussion, Fried offers helpful practice points for oral argument and brief writing. In the next post, we will share some examples he provided from his practice as an appellate lawyer, and an interesting anecdote on how the Supreme Judicial Court changed its pre-argument procedures during his tenure on the Court.

Oral Argument

  • Many appellate lawyers can’t help but continue talking long past the time they have something important to say. Get to the heart of it, Fried advises. He considers it a point of pride not to make it to the yellow light (indicating that time is almost up).
  • Find an image or an analogy that encapsulates the legal issue presented to the court, so that it will remain in the minds of the justices when they think about the case later on.
  • Remember that it is hard to win a case at oral argument. More often, you are trying not to lose what you have won in your briefing.
  • Do not evade questions at oral argument. The justices will see that evasiveness, become irritated, and assume you do not have a satisfactory answer to the question posed.

Brief Writing

  • Many lawyers are so consumed by the injustices that occurred in the trial court that they cannot appreciate the strength of the case on appeal. Fried refers to this as “Acquired Conviction Syndrome.” The result is that they focus the appellate briefing on a dozen small points, rather than the few issues that stand out. That is lethal, and is one reason it is often a good idea to hire appellate counsel.
  • Get the bad news out yourself. Whether in brief writing or at oral argument, appellate judges are smart and will see the weaknesses in your case. Don’t miss the opportunity to address those weaknesses and put them in the best possible light. If you don’t, the justices, or worse, your opponent, will.

Photography by Matthew W. Hutchins, some rights reserved.

Appellate Strategies: Massachusetts Appeals Court Single Justice Practice

 

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Recently we covered the basics of interlocutory appeals to a single justice of the Massachusetts Appeals. Court. Here are some thoughts on how you can improve your chances of obtaining review:

  • Highlight why the issue presented is an important one not only for your case, but for other pending cases, or the development of the law generally, the administration of the court system, state government, or the general public. The single justice is more likely to give your petition serious consideration if the issue presented is not limited to a possible error in one case. But don’t oversell the importance of your case or the issue – the court will see through that.
  • Explain why an appeal from a final judgment would be inadequate. As a practical matter, why can’t your client wait until after a trial or other final judgment for appellate review? Would the issue you are seeking review of now be likely to be considered on a regular appeal? What harm has been caused by the order you are seeking review of? Can that harm be effectively remedied by a regular appeal, which may not occur until years later?
  • Keep your brief and appendix short. The brief is limited to 15 pages, but keep it shorter if you can, and only ask for more pages in an extraordinary case. If you can’t explain concisely why the issue is sufficiently important and the trial court’s decision so wrong that it requires correction now, think it all through again and rewrite it. The appendix should contain only what is necessary to decide the issue, certainly not the entire set of papers filed in the case. The more pages you present, the less likely it is that a busy judge will review your papers carefully.
  • In appropriate cases, consider asking the single justice to simply grant leave for an interlocutory appeal to a full panel of the Appeals Court, rather than deciding the issue himself or herself. This may be more appropriate where you are seeking to appeal a pure question of law.

Ultimately, you want your petition to stand out among the crowd. The goal is to convince the single justice why the issue you are presenting is sufficiently important, and why the trial court’s order is sufficiently outside the scope of proper judicial decisionmaking that the single justice should step in. Every trial judge makes mistakes, and the mere fact that there was a mistake in judgment may not be enough, unless the mistake is going to cause serious harm and would be difficult to correct later.

Photography by Rachaelvoorhees, some rights reserved.

Appellate Strategies: Even a Kid Can Take an Appeal

Post Photo_Quill-400pxWOnce, while at a family gathering, I witnessed my brother tell his four-year-old son, Riley, that, no, he could not watch a video until after he finished eating dinner. Undaunted, Riley jumped up from the table and ran to his mother in the kitchen, “Mom!” he cried. “Dad won’t let me watch Pinocchio!” Immediate appeal from a final judgment.

The parallels between Riley’s pursuit of a higher authority and what I do for a living got me thinking. Clearly, Riley was unhappy and thought his chances would be better with a different decision-maker. Perhaps a more sympathetic ear, one with liberal movie-watching leanings. Alas for Riley, his mom is an experienced jurist and quickly ascertained that the Court of Dad had not erred. Affirmed without opinion.

Was Riley’s reaction so very different than the reaction that most clients have upon hearing that they have lost their case? Probably not. Everyone is looking for a fair shake. A chance to complain. Ever-elusive justice. Continue Reading

Selective Tender Exception to Equitable Contribution Doctrine in Massachusetts Addressed By Supreme Judicial Court

Employers sometimes have more than one workers’ compensation policy that provides coverage for the same loss. When more than one policy covers a loss, the employer may have an incentive to intentionally tender the claim to one insurer and not the other. This is called selective tender. When the insured makes a selective tender, can the “chosen” insurer seek contribution from the non-chosen insurer? Yes, in Massachusetts.

The Supreme Judicial Court, on a question certified to it by the First Circuit Court of Appeals, recently held in Insurance Co. of the State of Pennsylvania v. Great Northern Insurance Co., 473 Mass. 745 (2016), that an employer’s selective tender of a claim to one of its insurers did not foreclose the insurer from obtaining an equitable contribution from the other insurer to whom the claim was not tendered. The ruling rejects the minority of jurisdictions that have recognized a selective tender exception to equitable contribution doctrine. Continue Reading

Can an Attorney’s Affidavit Cure a Defective Mortgage?

In Bank of America, N.A. v. Debora A. Casey (In re Pereira), 791 F. 3d 180 (1st Cir. 2015), the United States Court of Appeals for the First Circuit certified the following questions to the Massachusetts Supreme Judicial Court:

  1. May an affidavit executed and recorded pursuant to G.L. c 183, § 5B, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor, correct what the parties say is a material defect in the Certificate of Acknowledgment of that mortgage?
  1. May an affidavit executed and recorded pursuant to G.L. c 183, § 5B, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor, provide constructive notice of the existence of the mortgage to a bona fide purchaser, either independently or in combination with the mortgage?

Continue Reading

Massachusetts Supreme Judicial Court Restricts Review of Arbitration Awards

In a dispute arising from the break-up of an accounting partnership, the Massachusetts Supreme Judicial Court has held that parties to a contract cannot agree to expand the grounds on which a court can vacate a commercial arbitration award beyond the bases explicitly set forth in the Massachusetts Arbitration Act (MAA). Katz, Nannis & Solomon, P.C. v. Levine, 473 Mass. 784 (2016). Thus, even where contracting parties wish to give the court more power to review (and perhaps restrain) the power of an arbitrator, the MAA forbids them from doing so, according to the SJC.

The dispute in Katz arose from alleged serious misconduct of one of the firm’s founders; as a result, the remaining partners voted him out. The ousted partner, Levine, took the matter to binding arbitration (per the partnership agreement). The arbitrator held that the vote was proper, that sufficient evidence supported a vote to eject Levine “for cause,” and awarded the partnership more than $1.7 million, plus interest.

The partnership moved to confirm the arbitration award in Superior Court and Levine moved to vacate it. The Superior Court confirmed the award, added an award of attorneys’ fees, and Levine appealed to the SJC, per its grant of a request for direct appellate review. Continue Reading

Massachusetts Appeals Court Single Justice Practice: The Basics of Interlocutory Appeals

Appeals of interlocutory orders from Trial Court Departments are reviewed by the single justice of the Appeals Court.  The interlocutory appeal process is governed by G. L. c. 231, § 118, which establishes a 30-day deadline for filing a petition for interlocutory review.  Importantly, this 30-day deadline is set by the statute and the Appeals Court cannot enlarge it.

Generally, initiating an interlocutory appeal to the single justice requires filing the following:

  • Petition for Interlocutory Review (not to exceed five pages);
  • Memorandum of Law in Support of Petition (not to exceed fifteen pages);
  • Record Appendix; and
  • Certificate of Service.

In addition to G. L. c. 231, § 118, petitions for interlocutory review are governed by the Appeals Court Standing Order Concerning Petitions to the Single Justice, which should be carefully reviewed.  The Standing Order contains specific direction on the contents, format, and filing of the petition and supporting papers, with references to the Rules of Appellate Procedure.

A Petition for Interlocutory Review must include the following sections, in order:

  1. a request for review;
  2. a statement of the issues of law raised by the petition;
  3. a statement as to whether a party has filed, served, or intends to file a motion for reconsideration with the trial court;
  4. a statement of the specific relief requested; and
  5. an addendum containing a copy of the order or action of the trial court.

The Appeals Court now requires that all parties represented by counsel simultaneously file, with the paper copy, a searchable PDF copy of the petition, supporting memoranda of law, and record appendix.

Hearings on petitions for interlocutory review are not automatic.  Rather, the single justice has the discretion to decide whether a hearing will be held.

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