The Denver Docket: Building a winning appeal, with Jim Martin

Transcript:

Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.

Adam: Welcome back to the podcast. I'm Adam Massaro in the Denver office of Reed Smith, and I'm joined by a special guest, Jim Martin. Jim, how are you?

Jim: Pretty good, Adam, and good morning.

Adam: So we've been at the new Denver office for a little over six months. How's it going for you so far?

Jim: I love being able to come into an office again. I was working from home primarily in Littleton before we opened, and it's nice to be back with colleagues in the office.

Adam: Now, a lot of us, like myself and my team, came over from another office, but you were actually at Reed Smith before we opened the Denver office. Is that right?

Jim: Yes, I think the firm actually dates my beginning started in 1978. So I've been here quite a while.

Adam: All right. Well, that's before I was born. So I think you can be sort of the holder of knowledge on this podcast then for the firm itself. How's that sound?

Jim: Perfect. All right.

Adam: Well, give us a little background. So even though you've been with the firm for a very long time, how did you get your start at the firm?

Jim: Yeah, so if we look at the California footprint, I was a summer associate in 1977 in a firm called Crosby, Heafey, Roach, and May. And in 2002, we merged with Reed Smith. And at that point in time, I relocated to Pittsburgh as part of the combination. So my first Reed Smith office was in Pittsburgh in 2002.

Adam: I see. And why did you choose to go back East, even though you're in a West Coast office?

Jim: Well, I was either the hostage or the symbol of good faith. Yeah, you have to answer that depending on circumstances. But the combination was the largest domestic law firm combination up to that time. And it was so significant for both firms that we agreed a principal partner in each firm should go one west-east and one east-west.

Adam: Yeah, it sounds a little bit like a prisoner swap, but at least you got to go to a new location. So you went to Pittsburgh. What type of litigation work were you doing in Pittsburgh then?

Jim: Well, I had an appellate practice, still do, and that was important in the combination. Reed Smith wanted to build out a freestanding appellate practice, and that's what I started doing on the East Coast when I got there.

Adam: And for appellate work over the years, what are some of the different places you've briefed and argued?

Jim: Well, I've been in every federal circuit court and the Court of Claims. I briefed and participated in cases in the U.S. Supreme Court. I've never argued there. I've briefed and argued in probably nine or ten state Supreme Courts and probably a similar number of state court of appeals over my career.

Adam: As trial lawyers, anytime we're in a different venue, there's obviously all types of local considerations, things like that. At the appellate level, though, when you're arguing one federal circuit versus another, how much do you factor in the locality, demographics, things like that at the appellate level?

Jim: I think it's very parallel. Just like trial lawyers want to get the lay of the land with local judges, appellate lawyers want to do the same thing. And there are frequently consultations with local appellate lawyers about Federal Circuit Courts of Appeals and the judges in them, and State Courts of Appeal and the justices in them as well.

Adam: I want to talk to some of the mechanics on the appeals themselves, but let's start with the simple level. I've always heard you can't have just a pure appellate practice. Is that truth or fact?

Jim: I'd say it's somewhere in between. So, you can have a pure appellate practice. I think you have to give it a proper description. And so the dimensions to a pure appellate practice, in my view, are more than just the straight appeals that you and I might understand after trial. It's a broader consulting practice and even involves trial work on some level in order to properly, I think, implement everything that appellate lawyers should be doing.

Adam: So the thing I got to unpack is, obviously, issues that aren't preserved can't be argued on appeal. So bringing you in, at least at the post-judgment stage—motion for new trial, JNOV, reversal, things like that—at a minimum, but perhaps even earlier if we're talking about a significant issue that's going to impact future issues in the case as well.

Jim: Yeah, I think if you unpack my practice and look at the pieces of it, that consulting role is a significant one, particularly as I've gained experience in jurisdictions and in front of a lot of judges and courts. But issue preservation is one aspect of that. Strategic choices are another. And, of course, there are opportunities to participate and support on major substantive motions. Daubert, for example, you would be familiar with; class action, class certification. And the reason for that is those motions often carry interlocutory appeal potential. So you really want an appellate lawyer in the drafting process, even in the arguing process, and then that paves the way for appeal. On the issue preservation, it's the same thing. You don't want to leave behind anything that might create an opportunity for reversible errors. So getting an appellate lawyer in the mix is important.

Adam: On jury instructions, this is an area that I always see as ripe for error for judges, especially because they're often working on them toward the very end of the trial itself, leaving little time for reflection. I've seen all types of things: reversal of the improper burden of proof, improper instruction on a key element, too many instructions that I think are actually inappropriate. On jury instructions, though, if you're going to actually get a reversal based on a jury instruction, what are some of the things you need to focus on to establish grounds for reversal?

Jim: Yeah, so let me back up and deflect that for a second. I think jury instructions are an important part of the consulting role that I play, and that can be on two levels. One, in helping define the factual investigation and discovery that's needed to prove a case on the one hand or defend it on the other. And then second, to make sure that the instructions that are given are either properly submitted or properly objected to. And I often appear in cases at the trial level at instructional conferences. For those purposes, it takes the burden off the trial lawyers, and they can be busy preparing and closing. On your point about where you get instructional error, it's probably the most frequent type of reversible error that you'll see in appellate practice. And I think the most significant errors come in the burden of proof or in ambiguity instructions. You're going to have to show those are prejudicial at the end of the day. That's the standard of review. But if there's an error of law in the instructions, that's a pretty easy hurdle to clear. And that's why you see—but back to my other point—that if that instruction wasn't properly objected to at the time, that's going to impact the appeal for sure.

Adam: One thing I often focus on in my cases is that if I get a claim dismissed or a ruling on a pure legal issue, my initial reaction is: good. If it has to happen, I'd rather have it happen on a pure legal basis or on summary judgment so I get de novo review. Put differently, are there circumstances where you've actually seen a non-de novo issue reversed? And if so, what non-de novo issues actually have a shot on appeal?

Jim: Yeah. So, the non-de novo issue I think that actually happens the most frequently is the lack of substantial evidence to support a ruling that was made, as opposed to an abuse of discretion. And that can come up in a lot of contexts because there are a lot of pretrial rulings that require substantial evidence in order to support them. And when you unpack it, a lot of times there are only conclusions to substantiate a ruling or the judge doesn't articulate the evidence to support the ruling. And when you unpack it, it's not there; it could be inconsistent with the proof offered. So I think those are examples of when you can actually get a reversal, even on a non-de novo situation.

Adam: One other thing I'm always thinking about at trial is what issues I move on at halftime, especially if I'm the defendant or if somehow I think I'm actually holding some real cards. I think about what I can actually get out of a halftime motion versus what I save for post-trial filings. As I've done more cases, I think more about whether I have to bring something as a halftime motion. For example, with a damages award, my reading of a lot of the rules is I can often challenge the award after the fact, especially if it's based on a completely unsubstantiated lost profits analysis. But the flip side is, if I move at halftime and I don't get it, I've tipped off the other side about issues they might fix before the close of evidence. Thoughts on drawing that line between issues to address at halftime versus issues to save for after trial?

Jim: First, you have to check your applicable rules in your jurisdiction. In federal court, for example, if you say anything, you're at risk. Federal preservation rules generally require a pre-verdict motion on anything you're going to move on post-verdict, and the waiver penalty is pretty severe. Some states adhere to that same standard on most issues related to everything but damages. So the first thing is a preservation issue, not a tactical issue. On tactics, I think it depends on how you feel about the education process you mentioned. If you assume you're in a non-waiver situation and you see risks in educating the other side, then you might want to hold back. But there's another player in the education arena, and that's the judge. Oftentimes, I think the pre-verdict motions are intended to signal to judges just how weak a case is in any of its particulars. That can help you post-trial when your motions come in, because that decision process is usually in a compressed timeframe. So some of that preventive education can be important.

Adam: I've seen cases that go on appeal where, at some point, there's a significant switch in the judge's approach, especially when earlier rulings create a cascading effect. Sometimes judges, once they choose a path, won't move off it. When you consult early enough, can you get a judge off that path or grant a post-trial motion? How do you stop that slide?

Jim: I think there are two pieces to that. One is diplomacy, and the other is substance. Diplomacy is just a code word for the fact that judges have an irritation factor if you're constantly reminding them about issues you think are important—essentially that they've run the case off the rails. Packaging is very important. During trial, it's also important to return to questions of prejudice that relate to how the proof is going in or the issues being considered, looking ahead to your record for appeal. In my experience, similar to yours, judges don't have an epiphany very often. Your chance of getting that epiphany is stronger if you have, diplomatically at stopping points—even in chambers conferences—made a record reminding the judge that something is really prejudicial and impactful. I have seen courts turn around with that kind of record, but it doesn't happen very often.

Adam: Let's flip to the actual appeals. When you're taking an appeal, how do you take an objective viewpoint when you're hired by one side to reverse or affirm the outcome? You want to keep the record you can argue on appeal, but you also want to avoid confirmation bias and not simply re-argue what was presented below. How do you reset to identify the best winners on appeal—especially if the supposed winners below don't look like winners to you on appeal?

Jim: Experienced appellate lawyers build up that objectivity discipline. If you're going to be retained—inside your firm or outside it—you have to display that. If you don't, you're not delivering everything an appellate lawyer should. That can include advising a client or trial lawyer not to take the appeal, or at least being candid about the chances of success. Many trial lawyers and clients look at appeals as rescue missions where three judges will see the light where one judge or a jury didn't. That's not the proper equation. Affirmance rates are high; it's difficult to turn a case around. The first thing an appellate lawyer should bring is a candid assessment of the likelihood of success. After that, the principal problem is that trial lawyers and clients don't want to let go of issues that have been their significant card throughout the case, and often there's no traction on those issues on appeal. Getting people to move off those is part of the objective analysis, coupled with objective reasons why certain issues make sense to raise and why it's worth spending the money on them. Without that, your career as an appellate lawyer will be relatively short.

Adam: I've always heard: come up with your best three arguments, pick them, live with them, and lean in. Can you have more than three, and how do you sanity check how many is too many on appeal?

Jim: You could probably do your sanity check at more than one. It's very difficult to say there are multiple issues that create reversible error when, candidly, reversible error doesn't happen very often. You have to be very careful about the number of issues raised. There's no litmus test. There can be strategic reasons to bring several issues if you manage it properly to indicate the level of prejudice that occurred, even though the court is unlikely to gravitate to the last two or three issues.

Adam: Last question. You've been practicing for decades. What's the one piece of advice you would tell your younger self?

Jim: I wish I had known how to do a better work-life balance over my career. If I had it to do over again, I would have been more careful about the amount of time I invested into practice at the expense of paying attention to other things I should have. I ended up as a better lawyer as a result of that, but I think I could have gotten to where I am now having invested a little more time in other endeavors along the way.

Adam: It's an interesting observation, because you don't know if you're a good enough lawyer until you've proved it. That calculus is tough. But it sounds like you haven't solved the same mystery we've all been trying to solve in private practice and beyond.

Jim: Hard to argue with that.

Adam: Jim, thank you for your time. It's great to have you in the Denver office, and I'm excited to see what happens next. That's it for our podcast today.

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