Appellate Practice Report

MDTC Appellate Practice Section

By: Phillip J. DeRosier,Dickinson Wright PLLC, and Trent B. Collier, Collins Einhorn Farrell P.C.

pderosier@dickinsonwright.com, trent.collier@ceflawyers.com

Appellate-Practice Report

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If Checklists Help Surgeons, They Just Might Help Lawyers

With Briefing and Argument, Too

Atul Gawande, a surgeon at Brigham and Women’s Hospital, seems to spend equal time in the operating room and on the New York Times’ bestseller list. His writing usually focuses on medical issues, but he uses insights from medicine to address wider themes. His latest book, Being Mortal, proposes a fundamental shift in how we think about death and end-of-life care. The book that prompted this column, however, deals with a more mundane subject: checklists. It happens that Dr. Gawande has something to teach lawyers about how to be more effective in briefing and oral argument.

Dr. Gawande’s Manifesto

The Checklist Manifesto,[1] originally published in 2009, is exactly what its title promises. It’s an exhortation to expand the use of checklists and a paean to their utility. And Dr. Gawande’s argument for using checklists is compelling. He writes that there are two basic kinds of errors: those caused by ignorance and those caused by “ineptitude.”[2] In the first category, we fail because we lack the necessary knowledge. In the second, “the knowledge exists, yet we fail to apply it correctly.”[3] Dr. Gawande convincingly shows that, although medical and scientific knowledge has expanded at an almost exponential pace, serious, avoidable errors persist.

So the problem isn’t knowledge; it’s making sure we apply knowledge correctly. Using a checklist is a simple way to make sure we do so.

And it works. For example, The Atlantic cited a program at Veterans Affairs suggesting that the use of checklists reduced annual mortality by 18%.[4] The World Health Organization developed its own surgical checklist and reports that its use decreases mortality, surgical complications, and the length of hospital stays.[5] Of course, simply writing a checklist isn’t a panacea.[6] It requires consistent use—and a change of culture.

The Case for Legal Checklists

Lawyers face many of the same knowledge-management issues as doctors, including increasing specialization and complexity. Dr. Gawande notes a “36 percent increase between 2004 and 2007 in lawsuits against attorneys for legal mistakes—the most common being simple administrative errors, like missed calendar dates and clerical screw-ups, as well as errors in applying the law.”[7]

And it’s no wonder. We have to master an ever-widening body of substantive law. We have to put that knowledge into practice based on complicated court rules, local rules, and individual judges’ practice guidelines. We have to do the work of zealously representing our clients—producing quality work, keeping track of deadlines, looking ahead for forks in the road—while spending time developing relationships that will lead to future cases. All the while, we’re inundated with concentration-sapping emails, texts, and phone calls.

Modern law—modern life, for that matter—is a recipe for the second kind of error that Dr. Gawande identifies: those where we have the know-how and fail to employ it.

Many of these errors won’t break a case. Forgetting to attach an exhibit, for example, may not destroy a client’s legal position. But sometimes it might. Employing checklists might be a simple, cost-effective way for lawyers to cut down on errors. Indeed, some courts provide their own checklists. The Sixth Circuit Court of Appeals, for example, provides a checklist for briefs.[8]

Sample Checklists

Here, for example, is a checklist for filing a brief:

¨ Obtain client approval for filing

¨ Review relevant court rules or local rules

¨ Include each section required under court rules (e.g., questions presented, standard of review, etc.)

¨ Verify compliance with rules concerning formatting and page limits

¨ Proofread

¨ Check for misspellings that might evade spellcheck (e.g., names, “trail” instead of “trial,” etc.).

¨ Proofread again

¨ Include request for oral argument if necessary

¨ Shepherdize/make sure all cases are current

¨ Verify that all exhibit references/pin cites direct reader to correct page

¨ Redact exhibits as necessary to preserve privilege and to comply with redaction rules

¨ Verify that exhibits are complete and legible

¨ Include relief requested

¨ Include proof of service that lists the necessary parties

¨ Verify that next date or task is calendared

Here’s a sample checklist for oral argument:

¨ Make travel arrangements and verify location/time of argument

¨ Notify client of argument date/time

¨ Review briefs

¨ If there are other represented parties on your side of the “v,” contact those attorneys to discuss division of allotted time.

¨ Review underlying record to prepare to answer factual questions

¨ Review key cases

¨ Update cases to determine whether any have been overruled, modified, or questioned

¨ Prepare outline for oral argument

¨ Research judges on panel to assess relevant jurisprudence

¨ Prepare references for oral argument (e.g., timeline, critical citations to record)

¨ Prepare list of possible questions from panel and short answers

¨ Analyze opponent’s likely arguments and prepare rebuttals

¨ Prepare and memorize short introduction

¨ Verify court rules regarding use of electronics or visual aids

A checklist shouldn’t be a static creation. The idea is to update checklists as problems arise so they continually narrow the gap through which errors can slip. And if that practice works for surgeons, maybe it can help us avoid errors like forgetting to request oral argument, accidentally attaching a privileged document, or being surprised by a question at oral argument that we should have anticipated.

Developing appropriate checklists, updating them, and using them consistently may require an investment of time. But, if the impact of checklists in the medical world is any guide, that time will be well spent.

Effect of pending motions for attorney fees on the finality of a judgment

A fundamental rule of appellate jurisdiction is the need for a “final” decision – whether it be a judgment or order. In Michigan, a final judgment or order is typically “the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties.” MCR 7.202(6)(a)(i). In federal court, a “‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v United States, 324 US 229, 233 (1945).But what if there is a pending motion for attorney fees at the time the underlying judgment or order is entered? Does that affect the time for filing an appeal?

In federal court, the answer is generally “no.” Federal courts have long recognized that a post-trial motion for attorney fees does not prevent the judgment on the merits from being final. See Budinich v Becton Dickinson & Co, 486 US 196 (1988). And in Ray Haluch Gravel Co v Central Pension Fund of the Int’l Union of Operating Eng’rs, ___ US ___; 134 S Ct 773 (2014), the Supreme Court recently clarified that it makes no difference whether the attorney fees are being sought under a statute or contract (e.g., a contract provision awarding attorney fees to the “prevailing party”).

So what about cases pending in Michigan courts? Does the same rule apply? Apparently not. While case law is sparse, it appears that the Michigan Court of Appeals has taken a different approach to finality when it comes to unresolved attorney fee issues. On the one hand, MCR 7.202(6)(a)(iv) provides that postjudgment orders “awarding or denying attorney fees or costs under MCR 2.403, 2.405, 2.625 or other law or court rule” are considered “final orders” that are separately appealable. Thus, a party should not wait to appeal the judgment or order deciding the merits of the case until after a statutory or court rule-based attorney fee issue is resolved. See Jenkins v James F Altman & Nativity Ctr, Inc, unpublished opinion per curiam of the Court of Appeals, issued May 31, 2005; 2005 WL 1278478, *3 (Docket No. 256144) (holding that the plaintiffs could not challenge the trial court’s summary disposition decision because they did not timely appeal; although they did timely appeal from the trial court’s postjudgment order awarding attorney fees and costs, the Court of Appeals held that its jurisdiction was limited to the postjudgment order).

On the other hand, the Court of Appeals has held that there is no final judgment if there is an unresolved claim for contractual attorney fees. In TGINN Jets, LLC v Hampton Ridge Props, LLC, unpublished opinion per curiam of the Court of Appeals, issued Aug 29, 2013; 2013 WL 4609208 (Docket Nos. 294622, 297844), the plaintiffs filed a lawsuit claiming breach of contract. Following a bench trial, the trial court found in favor of the plaintiffs and awarded damages. The trial court entered a judgment to that effect on March 25, 2009, and also determined that the plaintiffs were entitled to contractual attorney fees, “in an amount to be determined in future proceedings.” Id. at *2. A separate opinion and order awarding attorney fees was entered on September 29, 2009, after which the defendants filed a claim of appeal.

On appeal, the plaintiffs argued that the Court of Appeals lacked jurisdiction “to consider any issues other than those relating to the award of attorney fees.” Id. The Court of Appeals disagreed, finding that the March 25, 2009 judgment was not the final judgment because it “did not resolve the issue of contractual attorney fees, which was a distinct claim in plaintiffs’ complaint.” Id. Observing that “‘[a]ttorney fees awarded under contractual provisions are considered damages, not costs’” under Michigan law, the Court held that the plaintiffs’ claim for contractual attorney fees “was not resolved until the trial court issued its September 29, 2009, order establishing the amount of contractual attorney fees, making that order ‘the first judgment or order that dispose[d] of all the claims’ alleged in plaintiffs’ complaint.” Id. (citations omitted).

So what should practitioners take from all of this? In federal court, a postjudgment request for attorney fees is treated as a collateral “cost” issue that does not affect the finality of the decision on the merits, even if the attorney fees are being requested pursuant to a contract. But in Michigan, the Court of Appeals appears to distinguish between contractual attorney fees and those available under a statute or court rule. Thus, if a judgment on the merits has been entered in a case where a motion has been filed for contractual attorney fees, in all likelihood that judgment will not be considered final for purposes of appeal.

Important Amendments to the Federal Rules of Appellate Procedure

Effective December 1, 2016, the Federal Rules of Appellate Procedure have been amended. While the amendments are not extensive, there are a few worth noting:

· Elimination of the “3-day rule” such that 3 days are no longer added to deadlines for responding to electronically-served documents. (FRAP 26(c));

· Clarification that post-judgment motions must be filed within the time period allowed under the Federal Rules of Civil Procedure (generally 28 days) in order to toll the time period for filing an appeal. This means that filing a post-judgment motion within an extension of time granted by the district court will not toll the appeal deadline. This amendment resolves a circuit split on the issue. (FRAP 4(a)(4));

· New requirements for filing amicus briefs in connection with motions for panel and en banc rehearing. These changes impact the deadlines for filing an amicus brief (and any required motion for leave) either in support of, or in opposition to, a petition for rehearing, as well the length limits for such briefs. (FRAP 29(b));

· Changes to the length limits for motions and case-initiating petitions. These documents used to be subject to page limits. Now they are subject to word limits, in the same manner as briefs. Most significantly, petitions (and responses) for permission to appeal are now limited to 5,200 words, and petitions for writs of mandamus and other extraordinary writs are limited to 7,800 words. (FRAP 5(c) and 21(d)). Motions and responses are limited to 5,200 words. (FRAP 27(d)).

· Reductions in the length limits for briefs. The appellant’s and appellee’s principal briefs are limited to 13,000 words (formerly 14,000 words), while reply briefs are limited to 6,500 words (formerly 13,000). (FRAP 32(a)(7)(B)(i) and (ii)). These limits are extended for combined appellee/cross-appellant briefs (15,300 words) and for combined cross-appellee/reply briefs (13,000 words). (FRAP 28.1(e)).

· Changes to the length limits for petitions for rehearing (both panel and en banc). Petitions for rehearing are limited to 3,900 words (formerly 15 pages). (FRAP 35(b) and 40(b)).



[1] Atul Gawande, The Checklist Manifesto: How to Get Things Right (Picador 2010). Dr. Gawade’s book is based on his 2007 article for The New Yorker, which is available here: http://www.newyorker.com/magazine/2007/12/10/the-checklist

[2] Id. at 8.

[3] Id.

[4] James Hamblin, Save a Brain, Make a Checklist, The Atlantic, March 17, 2014. Available at: http://www.theatlantic.com/health/archive/2014/03/save-a-brain-make-a-checklist/284438/ (last visited December 4, 2016).

[5] http://www.who.int/patientsafety/safesurgery/faq_introduction/en/#Q4

[6] See Hamblin, supra, describing a controversial study reported in the New England Journal of Medicine.

[7] Gawande, supra,at 11.

[8] See http://www.ca6.uscourts.gov/sites/ca6/files/documents/forms/Briefs%20Checklist.pdf (last visited December 4, 2016).

Categories: Volume 7-3

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