Appellate Adventures, Chapter 21: “I Won My Appeal! Now What?

Our story so far.

Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") granted summary judgment against Flash, rejecting Flash's claim that Topspin Tennis Club had breached its contract with Flash's client (tennis pro Debbie Dropshot) by firing her for flunking a drug test at a tennis tournament.

With the guiding hand of Patty Plato (his former law school professor), Flash had weighed the likely costs and benefits of appealing the Bull's ruling -- and decided to go ahead. So -- with Plato's help -- he filed his notice of appeal, filed his Appellant's Opening Brief, review the Respondent's Brief, and filed his Reply Brief. And he then orally argued the case. [See prior Moskovitz On Appeal columns.]

"I won!" Flash exulted. "I just got the court of appeal's opinion. They reversed the summary judgment against me."

Plato said, "Congratulations, Flash. You did a great job."

"By following your advice, Professor. So now I'll set the case for trial."

"Not so fast, Flash," said Plato. "The trial court doesn't have jurisdiction yet. That will happen in about six weeks or so, when the court of appeal issues its 'remittitur' remanding the case back to the trial court. Unless...."

"Unless! Unless what?"

"Unless your opponent does something to keep the appeal going. Like filing a petition for rehearing in the court of appeal."

"They will. Those guys never give up. Do they have a chance?"

"Not much. The judges put a lot of thought and time into writing their opinion, and they're not likely to undo it at this late stage."

"I know my opposing counsel. They will argue that the opinion twisted the statutory language and misunderstood the precedent cases it relied on."

Plato said, "Those arguments usually have almost no chance of success in a petition for rehearing. The meaning of the statute and cases was already argued in the briefs on appeal. The court did not buy your opponent's arguments then, so they won't buy them now."

Flash asked, "What about misstatements of fact? My opponent is sure to argue that the opinion got some of the facts wrong."

"That has a better chance of getting the court's attention. But unless the error is really significant, all the court will do is grant the petition for rehearing and then modify the opinion -- leaving the bottom line -- 'Reversed' unchanged."

"So filing a petition for rehearing is just a waste of a client's money?"

"Usually, though on very rare occasion it does work. But filing one has to be weighed against the cost -- not just the attorney fees for writing the petition, but the added risk."

"What added risk?"

Plato replied, "It could weaken counsel's effort to take the case to the next level: the California Supreme Court. Or, in the 9th Circuit, to an en banc rehearing of the panel's decision."

"How could it weaken it?"

"It's very hard to get the Supreme Court to hear a case. The worse the court of appeal opinion, the better the chance of getting Supreme Court review. If counsel files a petition for rehearing in the court of appeal, sometimes the court improve the opinion by modifying it. Counsel had a weak opinion that might catch the Supreme Court's eye, but now it's not so weak anymore."

Flash asked, "How often does the Supreme Court agree to hear a case?"

Plato said, "In ordinary civil cases, they grant about 3% of the petitions for review. And even if they grant one, that means only that they will hear the case. There's no guarantee how they will rule on the merits."

Flash said, "Wow, that 3% is pretty low. Will my opponent have a chance of getting theirs granted?"

Plato said, "It depends. The Supreme Court sees itself as a court that establishes the law, not as a court of 'error correction'. So even if the court of appeal misapplied the facts or the law, that alone will not be enough to get the Supreme Court to hear the case. Yes, the opinion was unjust, but occasional injustice is the price we pay for a legal system that is overloaded with cases. The Supreme Court decides only about 100 cases a year, and they normally grant review only where there is a conflict in the law, or the case involves an important issue of law."

Flash said, "Well, I guess my opponent will try to show a conflict by pointing the rule of law the opinion establishes, and then show the Supreme Court other published opinions that state a different rule."

Plato explained, "Yes, but attorneys try to squeeze their petitions into this 'conflict' category when it really doesn't fit. They attempt to show a 'conflict' by arguing that the opinion in their case is inconsistent with another opinion. In fact, the two reported cases purport to use the same rule of law, but they apply them differently. That's not enough to show a conflict, usually. You need to show an express conflict: one appellate court said the law is X, and another appellate court said 'We disagree. The law is Y.'"

"Does it matter whether the court of appeal opinion was 'published'?"

"Yes, it matters a lot. If the Court of Appeal opinion in your case is 'unpublished', you have very little chance of showing a conflict that matters to the Supreme Court. If no one but the parties see it, who cares? It has no effect on 'the law', so the Supreme Court is unlikely to grant review. So very few of the 3% will involve unpublished opinions. But it does happen occasionally -- usually when your unpublished opinion presents an opportunity to resolve a conflict that already exists among other published opinions."

Flash asked, "What about the other ground? How could they show that our case involves an 'important issue of law'?"

Plato replied, "It's not easy. 'Important' to your client is not enough. It's got to be important to society -- or at least a large chunk of it. If a government agency is a party, it might be pretty easy to show that the ruling affects several similar agencies -- and, of course, the citizens subject to that agency's jurisdiction. But if the case is only between two private parties, it's much tougher."

Flash said, "That's my situation!"

Plato said, "Yes. So even if the court of appeal opinion is published and therefore sets some precedent, it might look like it affects only Debbie and Topspin."

Flash asked, "So they can't show it?"

Plato said, "It's tough, but they might show it by getting other organization to file amicus letters with the Supreme Court."

Flash asked, "You mean amicus briefs?"

"No. I mean amicus letters. An amicus brief is filed with a court that has already agreed to hear an appeal. An amicus letter simply urges the court to hear the case. The letter should focus on facts rather than law. It should explain why this issue is important in the real world, how it affects more people than the parties to the litigation. There's no need to discuss the legal issues in depth -- that can come later in an amicus brief, if and when the court agrees to hear the case. The amicus letter should be no longer than a page or two."

Flash asked, "Who might they get to file an amicus letter in this case?"

Plato said, "Well, if I were them, I would contact other tennis clubs throughout the state. And if there's some association of tennis clubs, I'd ask it to file an amicus letter too. The letters should explain why this problem of tennis pros and drugs is an important issue for them, and why they need clear guidance from the Supreme Court. If they can provide real life examples, all the better."

Flash said, "But none of this is in the record on appeal."

Plato said, "Doesn't matter. The petition for review is an original petition, not an appeal. And these facts are not about the merits of the appeal. They relate only to whether the issue is important enough for the Supreme Court to include in the handful of cases they're willing to decide."

Flash said, "Any other ways opposing counsel might show that the issue is important?"

Plato replied, "If they're smart, they'll think outside the tennis club box. Who else faces problems of sports pros and drugs? Maybe golf clubs, soccer clubs, and other sports organizations. If I were your opposing counsel, I'd try to get amicus letters from all of them. In my experience, most organizations you contact won't bother to help, so you need to ask three or four for every favorable response you get."

Flash said, "Seems like a lot of work outside the petition for review."

Plato replied, "Yes, it is. But it's pretty much your only chance in civil cases between private parties. If a lawyer is serious about trying to get into the Supreme Court, this is how to increase the chances. It raises the odds all the way up from miniscule to very small, but it can be worth it."

"So what's the bottom line, Professor?"

"The bottom line? You won the appeal, Flash, and it's very unlikely that your victory will be undone by either the court of appeal or the Supreme Court. So go back to the trial court and prove your case at trial. Go get 'em, Flash!" 