Appellate

August 6, 2010
Q&A With Lane Powell's Tom Sondag

In the Ninth Circuit, the biggest problem is the court’s size. One of the things that is wonderful about our state appellate system is the trust the court has in the attorneys that appear before it. In the Ninth Circuit, a similar level of trust does not exist, and it's possible that it can't, says Thomas W. Sondag, chairman of Lane Powell PC's appellate practice group.
March 24, 2010
Q&A With Howard Rice's Jerry Falk

While the U.S. Court of Appeals for the Ninth Circuit may be large, it by and large functions well, and the arguments for dividing it are weak, says Jerome B. Falk Jr., a senior member at Howard Rice Nemerovski Canady Falk & Rabkin PC and a certified specialist in appellate law.
January 21, 2010
Q&A With McGlinchey Stafford's Mike Rubin

In many circuits, the courts are overwhelmed with criminal appeals; therefore, civil appeals are often delayed in being heard and decided, or they are decided on a summary calendar, says Michael H. Rubin, the appellate practice leader at McGlinchey Stafford PLLC.
January 14, 2010
Q&A With Ruden McClosky's John Pelzer

The effect on the parties in a case is just one part of the outcome of an appeal. At least as important is the effect that the opinion will have on all future cases, says John H. Pelzer, a partner and appellate practice group member at Ruden McClosky.
January 12, 2010
Q&A With Warner Norcross' John Bursch

Delay is only a symptom of a much more serious problem: lack of adequate funding of our state and federal appellate courts, says John Bursch, chair of Warner Norcross & Judd LLP's appellate practice group.
January 11, 2010
Q&A With Kenyon & Kenyon's James Galbraith

Although the outcome of Ariad Pharmaceuticals v. Eli Lilly appears to be an inside-the-Beltway kind of issue, it had broad implications in patent litigation, says James Galbraith, a partner and intellectual property litigation practice area member at Kenyon & Kenyon LLP.
January 8, 2010
Q&A With Hahn Loeser's Steven Mintz

The judicial selection process for federal appellate judges is overpoliticized, a problem that was displayed vividly in Justice Sotomayor’s confirmation, says Steven J. Mintz, a partner and appellate practice group member at Hahn Loeser & Parks LLP.
January 7, 2010
Q&A With Thompson & Knight's Scott Stolley

Some judges look for an easy way out rather than deciding all of the issues, says Scott P. Stolley, head of Thompson & Knight LLP's appellate practice group.
January 6, 2010
Q&A With Armstrong Teasdale's Thomas Weaver

Despite complaints about delay, most attorneys and clients would prefer to wait as long as necessary to obtain a thorough and well-reasoned opinion, says Thomas B. Weaver, leader of the appellate group at Armstrong Teasdale LLP.
January 4, 2010
Q&A With Patterson Belknap's Stephen Younger

The biggest problem faced in our federal appeals courts is the delay in processing cases, which is driven largely by the backlog of immigration appeals, says Stephen Younger, a partner in Patterson Belknap Webb & Tyler LLP's appellate practice.
December 23, 2009
Q&A With Snell & Wilmer's Richard Derevan

The length of time it takes an appeal from start to finish, plus the cost of doing it correctly, can be very frustrating for clients, says Richard A. Derevan, a partner and appellate specialist at Snell & Wilmer LLP.
December 22, 2009
Q&A With Arnall Golden Gregory's Allen Hirsch

There should be more flexibility in the length of time for oral argument. Many cases cannot be addressed in 15 minutes, says Allen Hirsch, a partner in the litigation practice of Arnall Golden Gregory LLP who focuses on appellate practice, among other things.
December 21, 2009
Q&A With EpsteinBeckerGreen's Kenneth Kelly

The misuse of interlocutory appeals on meritless points in jurisdictions where such appeals are permitted is one of the biggest problems with the U.S. appeals process, says Kenneth J. Kelly, co-chair of the national litigation practice at EpsteinBeckerGreen who focuses on appellate work, among other areas.
December 18, 2009
Q&A With Choate's Robert Frank Jr.

The amount of time for oral argument is not well-matched to individual appeals cases: Some cases are better decided on the briefs, while others deserve more time for oral argument than the standard 15 minutes, says Robert S. Frank Jr., chair of the appellate practice at Choate Hall & Stewart LLP.
December 17, 2009
Q&A With Gunster's Jack Aiello

The typical appeal takes nearly 18 months for the first level review, and in many cases, that is enough time to change the circumstances of the parties enough that the ultimate result is no longer the most equitable one, says Jack Aiello, chair of Gunster Yoakley & Stewart PA's appellate practice.
December 16, 2009
Q&A With Shumaker Loop & Kendrick's Duane Daiker

Our courts are suffering from a lack of funding during these difficult economic times. The appellate courts cannot function properly with inadequate staffing and resources, says Duane A. Daiker, partner in the appellate practice group at Shumaker Loop & Kendrick LLP.
December 15, 2009
Q&A With EpsteinBeckerGreen's Herve Gouraige

While the appellate process is on the whole very good, one increasingly important issue is that the huge workload of the courts of appeals result in many summary dispositions and unpublished opinions, says Herve Gouraige, co-group leader of the national litigation practice at Epstein Becker & Green PC.
December 14, 2009
Q&A With Adams and Reese's Martin Stern

The federal appellate process works well, is efficient, and the quality of the decisions is generally excellent, says Martin A. Stern, leader of Adams and Reese LLP's appellate practice team.
December 11, 2009
Q&A With Gray Plant Mooty's Eric Yaffe

The practice in many states of electing appellate judges leads at times to the election of judges who are simply not qualified to render important decisions that can have a tremendous impact, says Eric L. Yaffe, a principal at Gray Plant Mooty who specializes in appellate law, among other areas.
December 10, 2009
Q&A With Lowenstein Sandler's Douglas Eakeley

A successful appellate attorney must keep in mind the appellate audience: An appellate court is going to bring a more detached and broader perspective to its consideration of the issues than a trial judge who has been overseeing the matter for months, says Douglas S. Eakeley, co-chair of the appellate practice group at Lowenstein Sandler PC.

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Expert Analysis

The Importance Of Morning Mist

Morning Mist Holdings Ltd. v. Krys provides guidance to courts that need to determine the location of a foreign debtor’s “center of main interests.” While not outcome-determinative in this case, in other cases, the Second Circuit’s decision may ultimately affect the scope of relief available under the Bankruptcy Code to a foreign debtor, says Alexander Woolverton of Weil Gotshal & Manges LLP.
How Monsanto Applies To Nonagricultural Biotechnology

The U.S. Supreme Court's recent decision in Bowman v. Monsanto Co. provides the biotech community some much-needed clarity regarding self-replicating inventions. Perhaps equally important, the court displayed a keen sensitivity to the negative implications of an overly broad exhaustion doctrine, say attorneys with Womble Carlyle Sandridge & Rice LLP.
1st Amendment Litigation: DC Circ. Edition

The D.C. Circuit’s broadly framed decision in National Association of Manufacturers v. National Labor Relations Board confirms that businesses should evaluate any informational or warning obligations with an eye toward protecting their First Amendment rights, say attorneys with Wiley Rein LLP.
When Rights Of Publicity Trump 1st Amendment

An important practice tip that flows from the Third Circuit's opinion in Ryan Hart v. Electronic Arts Inc. is that talismanic invocation of the First Amendment does not resolve the legal problem of balancing that amendment with competing rights such as the right of publicity, says Ronald Katz of Manatt Phelps & Phillips LLP.
Temporary Regulatory Takings Do Exist In Calif.

Property owners rarely succeed with regulatory takings claims — but securing a victory on liability and a damages award for a temporary regulatory taking, well, that is more in the realm of unicorns and the Loch Ness Monster. That all changed recently when the California Court of Appeal issued its decision in Lockaway Storage v. County of Alameda, say attorneys with Nossaman LLP.
Pitfalls For Lenders Redeeming Ala. Property

In First United Security Bank v. McCollum, the Alabama Court of Civil Appeals addressed the rights of a lender that redeems property sold at a tax sale as a result of its borrower’s failure to pay his property taxes. In certain situations, the decision will penalize lenders and awards property owners with a financial windfall, says Jack Kubiszyn of Bradley Arant Boult Cummings LLP.
DC Circ. Backs FERC's Approach To Return On Equity

Recently, the U.S. Court of Appeals for the District of Columbia Circuit rejected Southern California Edison’s challenge to the Federal Energy Regulatory Commission's methodology for determining a company’s base return on equity. One noteworthy lesson from the case is that this method can have a material affect on the ROE, with a large revenue impact, say attorneys with Day Pitney LLP.
Righthaven V. Hoehn: Bad News For Copyright Trolls

In its recent decision in Righthaven LLC v. Hoehn, the Ninth Circuit made clear that courts must look beyond labels in agreements and evaluate the substance of the rights actually assigned in order to determine whether an assignee has standing to pursue a claim for copyright infringement, say Benjamin Marks and Elisabeth Sperle of Weil Gotshal & Manges LLP.
Ill.'s Unclear Endorsement For Asbestos-Injury Losses

The Illinois appellate court decision in John Crane Inc. v. Admiral Insurance Co. on joint and several liability of excess insurers covering asbestos-related injury claims left several questions unanswered — most importantly, regarding separate injury triggers and the "all sums with stacking" approach, say attorneys with Wilson Elser Moskowitz Edelman & Dicker LLP.
High Court Takes On Declaratory Judgment Burden Of Proof

With the U.S. Supreme Court granting certiorari in Medtronic Inc. v. Boston Scientific Corp., it will help clarify who bears the burden of proof in a declaratory judgment action. If the court affirms the Federal Circuit, the traditional patent law for this type of controversy will be turned on its head, requiring a licensee to disprove infringement, says Shashank Upadhye of Seyfarth Shaw LLP.

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