What Every Lawyer Should Know about Appellate …What Every Lawyer Should Know about Appellate...
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What Every Lawyer Should Know about Appellate Settlement Settlement on appeal is a worthwhile option. Too many lawyers and litigants believe that once a case is on appeal, it is too late to settle because the parties have become entrenched in their positions. Not so. On appeal, the parties should reevaluate their positions and consider the risks and benefits of potential appellate decisions. Prevailing plaintiffs must recognize that actual recovery still may be years away and that they may lose on appeal, especially if the standard of review is de novo.Prevailing defendants also face the risk of reversal and retrial.The prospects of enduring a retrial should give both sides reason for reflection. Settlement on appeal avoids the costs and delays inherent in appeals and, like other forms of settlement, often increases client satisfaction. Settlement on appeal also may prevent the creation of unfavorable precedent that could harm a client in a later case and also might harm the client’s industry as a whole.Finally, as always, settlement provides a means for parties to fashion a result that could not be reached through the typical all-or-nothing consequences of litigation. The appellate courts will help settle your appeal. Not only is settlement a viable option on appeal, but the appellate courts also will help to settle cases, often at no charge. For exam- ple, the 9th Circuit Court of Appeals has a mediation office staffed by full-time professionals who are attorneys well-versed in negotiation, mediation, and settlement.Their job is to settle appeals, and they do so successfully, with more than half the cases accepted into the program resolved without further appellate proceedings—and at no charge to the parties. Locally, the Second District Court of Appeal has a Settlement and Mediation Program by which trained and experienced practi- tioners offer a minimum of six hours of free time to help reach a settlement. Most other court of appeal districts have similar programs.Apart from court-based programs, parties may benefit from hiring retired appellate judges to serve as mediators. Good resources exist. The literature on appellate settle- ment continues to grow,and these materials are worth reviewing in the context of any given appeal.Chapter 14 of John A.Toker’s California Arbitration & Mediation Practice Guide discusses appellate mediation. Chapter 5 of the Rutter Group’s Practice Guide to Ninth Circuit Civil Appellate Prac- tice details the court’s mediation program.Chapter 6 of the Rutter Group’s Civil Appeals & Writs Practice Guide and Chap- ter 15 of CEB’s California Civil Appellate Practice cover appel- late settlement and mediation programs district-by-district for state appellate courts. For appeals to the Second District in par- ticular,see www.courtinfo.ca.gov/courts/courtsofappeal /2ndDistrict/mediation.htm or contact Mediation Program Coordinator Theresa Carter at (213) 830-7136 or Theresa [email protected] also Justice Ruvolo’s Appellate Mediation—“Settling”the Last Frontier of ADR, 42 San Diego L. Rev. 177 (2005). Don’t settle too late, and don’t forget to notify the appel- late court. Be careful about settling just before (or even after) oral argument.Although most courts are happy to accept settlements at any stage of the process, some appellate courts understandably may be upset at having expended precious resources on a case only to learn that the parties have settled. Some appellate courts view their role as not merely to resolve disputes but also to create law,and thus may decide cases and issues in published decisions even after the parties have settled. See, e.g., Fireman’s Fund Ins.Cos.v.Quackenbush, 52 CA 4th 599 (1997); Arden Group, Inc.v.Burk, 45 CA 4th 1049 (1996). Avoid this possibility by starting the appellate settlement process early,and keep the court informed about the status of negotiations. Similarly,when an appellate matter settles,do not forget to tell the court. Rule 20 of the California Rules of Court requires appellants to immediately serve and file a notice of settlement in the court of appeal. Appellants then have 45 days to file either an abandonment (if the appellate record has not yet reached the court of appeal) or a request for dismissal (if the record has reached the appellate court). If a case settles after the court has scheduled oral argument, Rule 20 also requires appellants to notify the court of appeal immediately by tele- phone or other expeditious method. Stipulated reversals are controversial and difficult to obtain. One form of appellate settlement is the stipulated reversal, in which the parties agree that the trial court decision should be reversed.The California Supreme Court approved this type of settlement (absent extraordinary circumstances) and created a presumption in favor of accepting them in Neary v.Regents of U.C., 3 CA 4th 273 (1992).The California Legislature, however, reversed that presumption by enacting Code of Civil Procedure Section 128(a)(8).That statute places the burden on the settling parties to convince the appellate court that a stipulated reversal would not adversely affect non- parties or the public, and that the reasons for a stipulated rever- sal outweigh the erosion of public trust that results from the nullification of a judgment by consent.This burden is very diffi- cult to meet. Hardisty v.Hinton & Alfert, 124 CA 4th 999 (2004).Accordingly,because stipulated reversals are not easy to obtain, the safer course probably is to reach a settlement that does not also require a stipulated reversal. —Submitted by Benjamin G. Shatz, certified specialist in Appellate Law in the Appellate Practice Group of Manatt, Phelps & Phillips, LLP. He thanks Clerk Joseph Lane and Theresa Carter-Mata for their insights. The opinions expressed are his own. Reprinted with permission of the Los Angeles County Bar Association
Transcript of What Every Lawyer Should Know about Appellate …What Every Lawyer Should Know about Appellate...
What Every Lawyer Should Know about Appellate Settlement
Settlement on appeal is a worthwhile option. Too manylawyers and litigants believe that once a case is on appeal,
it is too late to settle because the parties have becomeentrenched in their positions.Not so.On appeal,the partiesshould reevaluate their positions and consider the risks andbenefits of potential appellate decisions.Prevailing plaintiffsmust recognize that actual recovery still may be years away andthat they may lose on appeal,especially if the standard of reviewis de novo.Prevailing defendants also face the risk of reversal andretrial.The prospects of enduring a retrial should give both sidesreason for reflection.Settlement on appeal avoids the costs anddelays inherent in appeals and,like other forms of settlement,often increases client satisfaction.Settlement on appeal alsomay prevent the creation of unfavorable precedent that couldharm a client in a later case and also might harm the client’sindustry as a whole.Finally,as always,settlement provides ameans for parties to fashion a result that could not be reachedthrough the typical all-or-nothing consequences of litigation.
The appellate courts will help settle your appeal. Not onlyis settlement a viable option on appeal,but the appellate
courts also will help to settle cases,often at no charge.For exam-ple, the 9th Circuit Court of Appeals has a mediation officestaffed by full-time professionals who are attorneys well-versedin negotiation,mediation,and settlement.Their job is to settleappeals,and they do so successfully,with more than half thecases accepted into the program resolved without furtherappellate proceedings—and at no charge to the parties. Locally,the Second District Court of Appeal has a Settlement andMediation Program by which trained and experienced practi-tioners offer a minimum of six hours of free time to help reacha settlement.Most other court of appeal districts have similarprograms.Apart from court-based programs,parties may benefitfrom hiring retired appellate judges to serve as mediators.
Good resources exist.The literature on appellate settle-ment continues to grow,and these materials are worth
reviewing in the context of any given appeal.Chapter 14 ofJohn A.Toker’s California Arbitration & Mediation PracticeGuide discusses appellate mediation.Chapter 5 of the RutterGroup’s Practice Guide to Ninth Circuit Civil Appellate Prac-tice details the court’s mediation program.Chapter 6 of theRutter Group’s Civil Appeals & Writs Practice Guide and Chap-ter 15 of CEB’s California Civil Appellate Practice cover appel-late settlement and mediation programs district-by-district forstate appellate courts.For appeals to the Second District in par-ticular,see www.courtinfo.ca.gov/courts/courtsofappeal/2ndDistrict/mediation.htm or contact Mediation ProgramCoordinator Theresa Carter at (213) 830-7136 or [email protected] also Justice Ruvolo’s AppellateMediation—“Settling”the Last Frontier of ADR,42 San DiegoL.Rev.177 (2005).
Don’t settle too late, and don’t forget to notify the appel-late court. Be careful about settling just before (or even
after) oral argument.Although most courts are happy to acceptsettlements at any stage of the process,some appellate courtsunderstandably may be upset at having expended preciousresources on a case only to learn that the parties have settled.Some appellate courts view their role as not merely to resolvedisputes but also to create law,and thus may decide cases andissues in published decisions even after the parties have settled.See,e.g.,Fireman’s Fund Ins.Cos.v.Quackenbush,52 CA 4th599 (1997); Arden Group, Inc.v.Burk,45 CA 4th 1049 (1996).Avoid this possibility by starting the appellate settlementprocess early,and keep the court informed about the status ofnegotiations.
Similarly,when an appellate matter settles,do not forget totell the court.Rule 20 of the California Rules of Court requiresappellants to immediately serve and file a notice of settlementin the court of appeal.Appellants then have 45 days to fileeither an abandonment (if the appellate record has not yetreached the court of appeal) or a request for dismissal (if therecord has reached the appellate court). If a case settles afterthe court has scheduled oral argument,Rule 20 also requiresappellants to notify the court of appeal immediately by tele-phone or other expeditious method.
Stipulated reversals are controversial and difficult toobtain. One form of appellate settlement is the stipulated
reversal, in which the parties agree that the trial court decisionshould be reversed.The California Supreme Court approvedthis type of settlement (absent extraordinary circumstances)and created a presumption in favor of accepting them in Nearyv.Regents of U.C.,3 CA 4th 273 (1992).The CaliforniaLegislature,however,reversed that presumption by enactingCode of Civil Procedure Section 128(a)(8).That statute placesthe burden on the settling parties to convince the appellatecourt that a stipulated reversal would not adversely affect non-parties or the public,and that the reasons for a stipulated rever-sal outweigh the erosion of public trust that results from thenullification of a judgment by consent.This burden is very diffi-cult to meet.Hardisty v.Hinton & Alfert,124 CA 4th 999(2004).Accordingly,because stipulated reversals are not easy toobtain,the safer course probably is to reach a settlement thatdoes not also require a stipulated reversal.
—Submitted by Benjamin G. Shatz, certified specialist inAppellate Law in the Appellate Practice Group of Manatt,Phelps & Phillips, LLP. He thanks Clerk Joseph Lane andTheresa Carter-Mata for their insights. The opinionsexpressed are his own.
Reprinted with permission of the Los Angeles County Bar Association
