Appeals work is creating a new group of legal experts
By Alan Cooper, Virginia Lawyers Weekly – July 23, 2007
Lewis T. Stoneburner is a very successful lawyer, as a string of seven-figure verdicts in personal injury cases in recent years illustrates.
But he goes to a tax specialist for tax advice and to a trust and estates lawyer for guidance in estate planning.
Add another specialist that Stoneburner relies on: appellate court expert.
In the past, Stoneburner has handled his own appeals to the Supreme Court of Virginia.
But the issues in the case of MacArthur v. U.Va. Health Services Foundation, Record No. 070475, convinced him to retain Virginia Beach lawyer L. Steven Emmert to write the briefs and argue the case before the court.
“It’s such an incredibly important case,” Stoneburner said. Circuit judges have written contradictory opinions on whether the foundations set up to administer the practices of doctors at the state’s teaching hospitals have charitable immunity.
Important enough that the other side has its own appellate expert, S. Vernon Priddy III of Richmond, albeit one with a somewhat different role. William H. Archambault, general counsel for the Piedmont Liability Trust, the self-insured professional liability organization for U.Va. physicians, has asked Priddy to advise Charlottesville attorney Donald R. Morin, who tried the case and will remain lead counsel on appeal.
Archambault said he asked Priddy to perform a similar role in a case he had before the court a few years ago. “We all think we can do all things,” he said, but it’s reassuring to have an attorney “who has been there, knows the personalities, knows the specific requirements off the top of their heads.”
Stoneburner has found the same comfort in Emmert. “He is so abreast of the law and so current on the rules of the Supreme Court and the procedures,” Stoneburner said. Perhaps more important, “I think he’s a very persuasive writer.”
MacArthur and a companion case, U.Va. Health Services Foundation v. Morris, Record No. 070214, are expected to be argued in November with a decision in January.
Several firms with active litigation practices have attorneys who handle most of the firm’s appeals to the Supreme Court or the Virginia Court of Appeals or the 4th U.S. Circuit Court of Appeals.
Among those attorneys are Priddy and Robert B. Delano Jr. at Sands Anderson Marks & Miller; Monica Taylor Monday at Gentry Locke Rakes & Moore LLP; George A. Somerville and William H. Hurd at Troutman Sanders LLP; E. Duncan Getchell Jr. at McGuireWoods LLP; Frank K. Friedman at Woods Rogers PLC; John Charles Thomas at Hunton & Williams; and John D. Eure of Johnson, Ayers & Matthews PLC.
Emmert and Monday are quick to emphasize that extensive appellate experience is not necessary to present an effective argument before the Supreme Court. “I’ve seen lawyers doing their first appeal do a fantastic job,” Monday said. As much as she enjoys the specialized appellate work, she said she likes the idea that those lawyers can be effective appellate advocates.
“I hope that Virginia is still a place where solo and small firm lawyers are going to continue to do that,” she said.
As chairman of the appellate subcommittee of the Virginia State Bar’s litigation section, Emmert has conducted several continuing legal education programs, often with a fellow appellate expert and a Supreme Court staff member, to help expand the pool of lawyers with basic appellate skills.
Of the two possible reactions to such a presentation: “I think I can use this information to appear before the court,” or, “I’m out of my league, I need to hire one of these guys,” the first is the general response, Emmert said.
In fact, Emmert said, “I don’t think I’ve ever been hired by someone at a CLE.”
Still, Monday said, appellate work “has become recognized as a discrete area of practice.”
“A lot of capable trial lawyers are starting to realize that they are better off not going into unfamiliar territory,” Emmert said, a land that is full of traps for the unwary that can quickly put the client out of court and his attorney before a disciplinary committee.
Both the Supreme Court and the Court of Appeals report attorneys who lose an appeal on a procedural issue to the Virginia State Bar for possible discipline for having failed to handle the matter in a professional manner.
And even if an attorney took the time to educate himself about how to jump through all the procedural hoops, the question remains as to whether that is the most efficient and profitable use of his talent, Emmert said.
Some attorneys have trouble switching from trial to appellate mode, Priddy said. “A fact-rich closing argument” is not likely to play well before an appellate court, which is looking for legal errors, not re-examining facts determined by a judge or jury.
“Sometimes the focus and the passion of the trial lawyer needs to be tempered with a more dispassionate look at what the [appellate] court might find attractive,” he said.
Monday said often the most useful task she can perform for a trial attorney is to look at the case record the same way the appellate court will. She can focus on possible legal error and whether it was properly preserved without having her judgment swayed by a personality conflict between the attorneys or a witness’s demeanor, issues not likely to interest an appellate court, whether or not they are apparent from the record.
Gregory Lucyk, chief staff attorney for the Supreme Court, said it might be an overstatement to say that Virginia has an appellate bar “but there are a number of experts … who are appearing regularly, providing assistance for others and providing training.”
“It’s a specialized practice,” he said. “It is one where the rules are critical.”
He emphasized that good appellate practice starts at the trial level with attention to preserving error—making sure that possible legal errors are called to the trial judge’s attention so that he or she will have an opportunity to correct them.
There is nothing more frustrating to the court than having a case with a novel or significant issue that is not properly preserved or presented, Lucyk said.
“Certainly from my perspective and the perspective of others at the court, we think it’s a good thing” that lawyers familiar with the court appear frequently and are willing to train others, he said. “Anything we can to do to continue that development is to be encouraged.”
Emmert said the relatively small number of appellate specialists are an exceptionally collegial group in which “small courtesies are routinely extended.”
Priddy said that may be because the practice “rarely comes with so many opportunities to become aggravated with your opponent.”