Appellate Adventures, Chapter One: “The Odds of Winning”

MOSKOVITZ ON APPEALS

Flash Feinberg fancied himself quite the trial lawyer. Still in his 30s, he already had a dozen trials under his belt -- with a couple of six-figure verdicts to show for it.

But this time he was in trouble. Judge Buller (aka "The Mad Bull") had just granted summary judgment against Flash's client.

His client was Debbie Dropshot, a tennis pro at the Topspin Tennis Club. Topspin hired Debbie to teach tennis to Topspin's members. On her own time, Debbie also played in professional tournaments, run by the Tennis Association. The Association requires players to submit to periodic drug tests. Recently, right before a tournament, Debbie took a drug test and flunked. The Association banned her from playing. Debbie is appealing that decision, claiming that the test was flawed: It showed "positive" only because Debbie had taken some medication for a sinus ailment.

But once Topspin's board of directors heard that she flunked the test, they fired her. Flash sued Topspin for wrongful termination.

Debbie's three-year contract with Topspin required her to "maintain professional standards and high-quality instruction for Club members." The Bull granted Topspin's motion for summary judgment, ruling that flunking a drug test violated that provision, so there was no "triable issue of fact."

Flash phoned Professor Patty Plato, who had been one of his professors during law school. Flash was upset. "The Bull's decision was outrageous, Professor. I want to appeal -- all the way to the Supreme Court, if that's what it takes."

Professor Plato was an experienced appellate advocate as well as a law professor. But she suffered from an affliction common to many law profs: the Socratic Syndrome. She answered almost every question with a question. Word had it that when she was a girl, after her mother had asked her "Where did you hide my car keys this time, you little brat?" Patty had responded, "Where do you think I hid them, Mommy?" The resulting smack had failed to cure her.

So when Flash asked, "So, Professor? Should I appeal?" Plato responded, "Do you have any experience handling appeals?"

Flash said, "No, but last year the bar association voted me third-best junior litigator in the county. Small county, I admit. But I can do an appeal. A court is a court, right? Same black robes -- no problem!"

"I guess we'll find out, won't we? Have you considered the costs and risks of appealing?"

This hadn't occurred to Flash. "No. How do I do that?"

"Have you ever bet on a horse?"

"Sure," Flash said. "I play the ponies once in a while."

"How do you do it?"

Flash thought about it. "Well, I estimate the odds of the horse winning and compare that to the payout. So if I think the odds are only 2-1 against the horse winning, but the payoff is better than 2-1, it's a good bet."

Plato said, "Maybe you should apply the same analysis to the appeal. It will require some work, so take your time."

Flash did some research. California has some excellent treatises on state court appeals, including Witkin, CEB and Rutter Group. And Rutter Group has a good treatise on 9th Circuit appeals. He was startled by the first thing he learned: In civil cases, the average reversal rate is just under 20 percent -- both in California courts and in the 9th Circuit. Not promising.

And he would need to show "reversible error." Appellate courts do not retry cases. They do not hear testimony. They look only at the trial court record, looking for some error by the trial judge. Even if they find it, they often find the error "harmless." So they won't reverse unless the mistake played an important role in the trial court's decision.

Flash thought the Bull had erred in his interpretation of Debbie's contract. The alleged misconduct did not occur at the Club, and the evidence that this would affect her teaching was disputed. Also, Flash had wanted to submit a declaration from an expert showing that the drug test was flawed, but the expert was on vacation in Africa, and Bull refused to continue the hearing until he returned.

The possibility of reversal looked pretty good. But he decided to run his analysis by Plato before moving to the "payout" issue. "So what do you think, Professor?"

Plato replied, "But what about the standard of review?"

"What's that?" asked Flash.

"Maybe you should find out? Appellate judges often treat that as the first and most important consideration."

So back to the books. Flash learned that the standard of review is like an appellate judge's job description, as in "Your job, judge, is to examine the appellant's arguments by a certain standard, which we call the 'standard of review.' That means you must apply that standard, rather than applying your own ideas as to what is fair. Because we respect our trial judges and don't want their rulings lightly undone, we limit when you can reverse them."

Flash's research uncovered some good news: An appellate court reviews a grant of summary judgment de novo, i.e., all over again, with no (well, almost no) deference given to the trial judge's interpretation. The trial judge can watch and listen to the witnesses, but the appellate judges can't do this, so the appellate court defers to his ruling in credibility battles. But the appellate judges can read documents just as well as trial judges can, so no need to defer. So Flash's argument that the Bull misinterpreted Debbie's contract with Topspin would be reviewed de novo, giving him a much better shot at reversal.

Professor Plato was impressed. "Nice work, Flash. So what's your chance of getting a reversal?"

"Well, I've got a pretty good argument that the contract does not cover misbehavior away from the Club."

Plato replied, "That's what you think. But you're biased. What will the appellate judges think? Get out of your own skin, Flash."

Flash said, "When I look at the case objectively, I have to admit that Topspin has a decent argument that flunking a drug test is not 'maintaining professional standards.'"

"You've nicely analyzed the legal issues," Plato said. "But what about justice? Appellate judges want to reach the just result. Is there anything about your case that makes the trial court's ruling particularly unfair?"

Flash thought about it. "Well, yes. Debbie had received excellent evaluations of her work for over a year. The members all really liked her -- except for Betty Backhand, a board member who had wanted to be named head pro herself."

Plato asked, "Is that in the trial court record?"

"Yep," said Flash. "I made sure to get in evidence of that."

"Now we're talking. Facts like those can go a long way towards winning an appeal. So, what's the bottom line?"

"About 50 percent chance of winning the appeal, maybe a bit lower."

Plato said, "OK. So now let's weigh that against the likely costs and potential benefits of taking an appeal."

And that's what they will explore in the next column.