Facing Goliath: Litigating Appeals Against the Government.The government is afforded remarkable privileges not available to private litigants

• Author: Tyce R. Walters
• Pages: 8-12

Appellate Practice

Winter 2020, Vol. 39 No. 2

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March 05, 2020

Facing Goliath: Litigating Appeals Against the

Government

The government is afforded remarkable privileges not

available to private litigants.

By Tyce R. Walters

As many appellate practitioners know all too well, the experience of litigating against the

government differs considerably from that of litigating against private parties. Although the

government is held to a high standard by the courts, it is also afforded remarkable

privileges not available to private litigants. Depending on the substance of the appeal, the

government may have legal arguments at its disposal of which private litigants can only

dream—as well as unique vulnerabilities. And as the ultimate repeat player, the

government’s strategic and tactical choices will frequently differ from those of a party

seeking only to prevail in a particular case.

Some appellate practitioners—especially those who face off against the government

regularly or who are alumni of government offices themselves—will already be familiar

with everything from the U.S. Department of Justice (DOJ) process for seeking approval to

appeal adverse decisions to the finer points of the informational standing doctrine. But

many others deal with the government only on rare occasions.

After leaving the DOJ, I was surprised to see how many capable advocates have only a

passing familiarity with the challenges and opportunities presented when litigating appeals

against the government. Below are a few pointers that may be helpful to such attorneys.

(While these points are most applicable to the federal government, many will also apply to

state and local governments.)

Presumption of Regularity

The government’s single greatest advantage is the respect afforded it by the courts. That

advantage manifests in a variety of ways—from judicial doctrines of administrative

deference to an informal willingness to take the government’s factual representations at

face value. Opposing advocates should try either to fight on terrain to which this deference

does not apply or to nullify it in some manner.