§ 3.3 Evaluate an Appeal in Light of the Appellate Process

JurisdictionWashington

§3.3 EVALUATE AN APPEAL IN LIGHT OF THE APPELLATE PROCESS

A working knowledge of the appellate process, the Rules of Appellate Procedure, and the means by which appellate courts resolve cases is essential to any evaluation of an appeal.

(1) The importance of a fresh perspective

The first step in evaluating any appeal should be to gain a fresh perspective. Having worked on a case for months, or more likely years, the trial attorney will find it difficult to step back and view the matter with a fresh eye. A truly fresh perspective can come only from a newcomer to the case. Thus, the best evaluation of an appeal comes from consultation with a lawyer who has not previously been involved in the case. The new lawyer is unencumbered by all of the background noise that tends to skew a trial attorney's perspective. A new lawyer will also have a new way of looking at the case, which may open a completely different approach to the appeal. A new lawyer on appeal also brings to the case what a new lawyer brings to any case: renewed energy unaffected by burnout.

Appellate experience is a valuable asset in evaluating the merits of an appeal. But an experienced litigation attorney often can also offer a new perspective on a case and help trial counsel to view the appeal objectively. This does not mean that the trial lawyer should have no further involvement in evaluating the appeal. The trial lawyer knows the most about the case, knows generally what is in the record (although memory is frequently inaccurate), is familiar with the relevant law, and knows potential appellate issues. In a small firm, it may be necessary to retain counsel from a different firm to assist with the evaluation. But in a medium-sized or large firm there may be other lawyers with sufficient experience to offer a fresh perspective in the evaluation process.

Whether assessment of a potential appeal is performed by appellate counsel or trial counsel, competent evaluation of an appeal requires an understanding of the appellate process and its limitations. The principles discussed in the following sections must always be kept in mind.

(2) Review prior to final judgment is very limited

At common law, appeal was allowed only from a final judgment that disposed of all of the issues as to all of the parties. The rule was based on the common sense proposition that a party is not really aggrieved until a final judgment, which could be a correct outcome irrespective of any errors committed along the way, and that appeal from interlocutory orders needlessly delay a dispute's resolution.

The appellate courts remain very reluctant to review trial court decisions until the conclusion of proceedings at the trial level. Most appellate courts now entertain review of interlocutory orders, but only when an error might cause irreparable harm if not corrected promptly.

RAP 2.2 lists a number of interlocutory decisions that may be appealed, all of which are characterized by some measure of finality or fundamental impact upon the parties or the case.

RAP 2.3 authorizes discretionary review of interlocutory decisions under limited circumstances. Chapters 4 and 6 of this deskbook discuss the criteria for discretionary review. See also Geoffrey Crooks, Discretionary Review of Trial Court Decisions Under the Washington Rules of Appellate Procedure, 61 Wash. L. Rev. 1541 (1986). The appellate courts rarely grant discretionary review. A party should seek discretionary review only in the extraordinary circumstances in which it is justified by the criteria set out in RAP 2.3(b).

Appellate counsel should be prepared to explain the limitations on interlocutory review to trial counsel and the client. When trial counsel or the client believes the trial court has just committed an obvious error, the immediate reaction may be to turn to the appellate court to correct that error. Generally, counsel reasons that the error is so serious that any trial will be flawed, leading to reversal and subsequent retrial, wasting considerable time and resources.

Appellate counsel must appreciate the perspective of the appellate court judge or commissioner, who knows from experience that many "erroneous" interlocutory rulings never lead to any appeal, let alone a retrial. In what is still the most cited discussion of interlocutory review in Washington, former Supreme Court Commissioner Geoffrey Crooks discussed the entrenched bias of appellate courts against intervening in a case before entry of a final judgment:

Most parties who come to the appellate courts wringing their hands about the prospect of two "long and expensive" trials are dealing with trials projected to take weeks rather than months or years. Most petitioners also tend to ignore the possibility that interlocutory review may simply substitute two long and expensive appeals for two long and expensive trials. This prospect is always in the minds of appellate court judges and commissioners, who also know from experience that a case not decided today may never have to be decided. Although a party may believe and sincerely argue that an eventual appeal is inevitable, it frequently is not so. Pretrial issues often are rendered moot by the result of trial. Other times the whole lawsuit settles. Most cases in which pretrial discretionary review has been sought but denied probably do not, in fact, return later on appeal.

Geoffrey Crooks, 61 Wash. L. Rev. at 1550; see also Minehart v. Morning Star Boys Ranch, Inc., 156 Wn. App. 457, 462, 232 P.3d 591 ("Interlocutory review is available in those rare instances where the alleged error is reasonably certain and its impact on the trial manifest."), review denied, 169 Wn.2d 1029 (2010). The appellate court must be convinced that the possibility of two appeals (which it will have to process) is preferable to that of two trials (which another court will process).

(3) How cases are processed in the appellate courts

This section discusses how appeals are processed in the Court of Appeals and in the Supreme Court, from screening and assignment of cases through preparation of opinions.

(a) Case processing in the Court of Appeals

The following subsections describe the process by which the Court of Appeals handles cases, from the initial screening memorandum through opinion preparation.

(i) Screening memorandum

Either a staff attorney or a member of the commissioner's staff prepares an initial screening memorandum for each appeal. These memoranda provide recommendations as to which cases are appropriate for disposition without arguments on the merits, certification, and accelerated or regular setting.

(ii) Assignment of cases

Each case retained for disposition by the Court of Appeals is assigned at random to an individual judge. Cases are apportioned equally among the judges, and each is decided by a three-member panel.

(iii) Allocation of cases to staff

Each judge on the Court of Appeals has two law clerks. The assignment judge, who will usually draft the written opinion, directs one of the clerks to examine the record, evaluate the briefs, and conduct any necessary research (themselves or by means of court externs).

(iv) Prehearing memorandum

The law clerk who receives the research assignment prepares a memorandum that sets out the procedural posture of the case, summarizes the facts, explains the parties' positions, and analyzes the issues under applicable law. The memorandum may include a recommended disposition. Each judge on the panel that will decide the case is given a copy of the prehearing memorandum in addition to the briefs.

(v) Pre-argument conference

In Division I, the judges often meet for pre-argument conferences. In Divisions II and III, panel members occasionally confer before oral argument, but generally do not discuss the disposition of a case until a post-argument conference.

(vi) Post-argument conference

All three divisions of the Court of Appeals routinely hold post-argument conferences, which take place after the last oral argument of the day. Each case is discussed to reach an initial decision as to its resolution. Whether an opinion should be published may also be decided. If the other panel members disagree with the assignment judge's position, the case is reassigned to one of them for preparation of the initial opinion. Any judge may subsequently change his or her position.

(vii) Opinion preparation

After the post-argument conference, the assignment judge prepares a draft opinion that is circulated for review and comment. If the other panel members do not agree on the outcome, they may write separately, but that happens rarely. Drafts of any concurring or dissenting opinions are also circulated. When the three judges reach final agreement about a case, or they agree to disagree, their opinions are filed.

(b) Case processing in the Supreme Court

The next subsections describe case processing in the Supreme Court. The procedures have many parallels with those in the Court of Appeals, described in §3.3(3)(a), above.

(i) Screening memorandum

In the Supreme Court, staff attorneys prepare screening memoranda to assist the justices in determining whether petitions for review should be granted and whether cases filed directly in the Supreme Court should be retained or transferred. Screening memoranda are not prepared for cases certified to the Supreme Court by the Court of Appeals or for cases in which the commissioner has granted discretionary review. For the procedure used in determining whether a petition for review should be granted, see Chapter 18 of this deskbook; for the procedure as to transfer of cases, see §5.4; and for the procedure on motions for discretionary review, see Chapter 10.

(ii) Assignment of cases

The Supreme Court hears oral argument in regular sessions that begin in January (winter term), May (spring term), and September (fall term) of...

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