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

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Appellate-Practice Report:

Three Habits for Writing More Civilly—and More Effectively

There are plenty of articles about the level of venom in politics these days, but lawyers can’t lay all the blame at the feet of politicians. We fall prey to the same temptations in our rhetoric—the temptation to be snide, to belittle an opponent, to overstate a point, to bully, to eschew nuance in favor of scoring cheap points. And, like all temptations, uncivil writing seems justified at the time but usually harms us in the end. In most cases, taking cheap shots and throwing elbows will alienate the judge who’s trying to make a dispassionate decision about the application of law to fact.

Yet it’s often hard to recognize incivility when it creeps into our writing. A lot of unnecessarily sharp writing is the product of habit. So here are three ways incivility may appear in the writing of even the most high-minded attorneys, and some thoughts on alternative approaches.

1. Avoid [sic]

When you catch typos in an opposing party’s brief, it’s awfully tempting to quote the error and add [sic]. Usually, the hope is that you’ve made the opposing attorney look more prone to error and, therefore, less credible. But what’s the chance that a judge is really going to think that much less of an opposing party’s arguments because the party’s attorney forgot to add an apostrophe to “it’s”? Or typed the wrong section number when quoting a statute? Or used the wrong verb tense? Bryan Garner’s very successful career as a Professional Grammar Corrector notwithstanding, most people don’t care for grammar snobs. Whatever points you score in correcting someone else’s error may be offset by the appearance of being petty.

So here’s an alternative. Assuming you actually need to quote the offending material and you’re not just quoting it to take a cheap shot, try correcting the error with brackets rather than adding [sic]. For example,

Smith contends that “[n]ot one of the plaintiffs are [sic] injured”

could be:

Smith contends that “[n]ot one of the plaintiffs [is] injured”

This way, you’ve corrected the error while also making the sentence more readable. Your fourth-grade teacher will still be proud of your mastery of grammar, and the judge can focus on the merits of your argument rather than irrelevant quibbles.

2. Don’t be ridiculous.

We all encounter arguments so bad that they warrant ridicule. It can be almost cathartic to call these arguments ridiculous, absurd, or even gibberish. Perhaps the best proof that you’re better off avoiding those words is the Sixth Circuit Court of Appeals’ opinion in Bennett v State Farm Mut Auto Ins Co, 731 F3d 584 (CA 6 2013). The Court’s opening paragraph is worth quoting in full:

There are good reasons not to call an opponent's argument “ridiculous,” which is what State Farm calls Barbara Bennett's principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” … But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct. [Id. at 584-85 (citation omitted).]

If you ever find yourself faced with a client or colleague who wants to cast aspersions on an opposing party’s argument, Judge Kethledge’s opinion in Bennett should be Exhibit A in support of your decision to stick to the high road. Plus, as Bennett suggests, writing off an opposing party’s argument as ridiculous could be a sign that you’ve misunderstood it.

3. Use some synonyms for “misrepresents”

Misrepresenting facts or law to the court is a serious matter; it can be a violation of the Michigan Rules of Professional Conduct. Yet lawyers regularly accuse each other of being “disingenuous” and offering “misleading” arguments. These terms are so ubiquitous that they have little power to shock or sway a judge. They’re like cries of “wolf” in a village where people greet each other by yelling “Wolf!” And that means every use of disingenuous or misleading is a missed opportunity to make your point in a way that actually has a chance of catching a judge’s attention.

Instead of accusing an opponent of being disingenuous or of misleading the court, try a less loaded word—misstated or misunderstood usually work—and add a succinct explanation of your opponent’s error. If the error is really disingenuous or deceptive, the court should pick that up from your description of the error. And, by framing that error with understatement, you’ve put the focus where it belongs: on showing the court that the other side was deceptive rather than just telling the court. Your less accusatory tone may even lend an air of credibility.

Sic, ridiculous, and misleading are more than canaries in the coalmine of incivility. Each is a red flag that highlights a missed opportunity for better advocacy.

Effect of Post-Judgment Motions on the Time to Appeal

There a number of reasons why parties in a civil case might consider filing a post-judgment motion before appealing an adverse decision. In fact, sometimes a post-judgment motion is required to preserve an issue for appeal. For example, in both Michigan and federal courts, a party must file a motion for judgment notwithstanding the verdict (renewed motion for judgment as a matter of law in federal parlance) if it wishes to challenge the sufficiency of the evidence supporting a jury verdict. It is important to know how such motions impact the applicable appeal deadline.

State Court

As a general matter, an appeal of right in a civil case must be filed within 21 days of the entry of judgment in a Michigan court. MCR 7.204(A)(1)(a). That deadline, however, is tolled by the timely filing of a “motion for new trial, a motion for rehearing or reconsideration, or a motion for other relief from the order or judgment appealed.” MCR 7.204(A)(1)(b). If one of these motions is filed, the 21-day appeal period begins to run “after the entry of an order” deciding it. Id.

Note that not every post-judgment motion will toll the time to appeal. It must be a motion seeking “relief from the order or judgment appealed.” Thus, a motion for case-evaluation sanctions would not affect the running of the 21-day appeal period.

Federal Court

The Federal Rules of Appellate Procedure similarly provide for tolling of the usual 30-day appeal period in civil cases upon the filing of certain post-judgment motions. FR App P 4(a)(1)(A). Rule 4(A)(4) identifies six such motions:

• Motions “for judgment under Rule 50(b)” (i.e., renewed motion for judgment as a matter of law following a jury trial);

• Motions “to amend or make additional factual findings under Rule 52(b)” (for cases tried by the court; can be combined with a Rule 59 motion for new trial);

• Motions “for attorney’s fees under Rule 54 if the district court extends the time to appeal under Rule 58;”

• Motions “to alter or amend the judgment under Rule 59” (often used to seek reconsideration of a decision made on summary judgment or after a bench trial);

• Motions “for a new trial under Rule 59;” and

• Motions “for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.”

As in state court, a post-judgment motion for attorney fees does not prevent the judgment on the merits from being final. See Ray Haluch Gravel Co v Central Pension Fund of the Int’l Union of Operating Eng’rs, ___ US ___; 134 S Ct 773 (2014).

Premature appeal filings

Although the filing of a timely post-judgment motion will serve to toll the time for appealing, it does not preclude a party from filing an appeal anyway. The Michigan Court of Appeals had previously concluded that it lacked jurisdiction to hear an appeal in a case in which a post-judgment motion remained pending. But in Nordstrom v Auto-Owners Insurance Co, 486 Mich 962; 782 NW2d 779 (2010), the Supreme Court clarified that a pending post-judgment motion does not “operate to divest the Court of Appeals of jurisdiction.”

Premature notices of appeal in federal court are handled in a similar fashion. Federal Rule of Appellate Procedure 4(a)(4)(B)(i) provides that “[i]f a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.” In other words, the appeal is suspended until such time as the post-judgment motion is resolved.

Conclusion

Aside from being important for issue-preservation purposes, post-judgment motions can serve strategic goals, such as providing leverage in settlement discussions or offering a trial court the opportunity to take a “second look” at a decision entered pursuant to summary judgment or summary disposition. Practitioners just need to keep in mind how these motions will affect the time to appeal.

Categories: Volume 7 #4

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