We’ve had conversations with judges, but for this installment, I will be discussing appellate strategy with Michael Hendershot, Deputy Solicitor General at the Ohio Solicitor General’s Office. Michael has served as a law clerk for on the Fifth Circuit Court of Appeals, a law clerk for an Ohio Supreme Court Justice, an attorney in private practice, and since 2008, with the Solicitor General’s office, where he has briefed and argued more than 30 appeals at the Ohio Supreme Court.
The conversation below was adapted from an August 2022 CLE at the Columbus Bar Association, where Michael served as the moderator, and I served as a panelist.
First question, what counts as strategizing? What factors do you include in evaluating whether to appeal, what to appeal and — if the decisions are to be made by another — what should they consider in making those choices?
|Hendershot:||There’s almost no limit to what might be part of the calculation. First in most people’s minds is the cost-benefit analysis of money and time. You also have to consider what the path to an ultimate victory looks like and whether the appealable issue gets you there.|
Depending on the client there are issues of public perception for continuing a matter. In my role, there are frequently considerations of long-term goals about establishing precedent.
|Posey:||Appellate strategizing begins when the dispute is brought to counsel’s attention — mainly in the form of a key question counsel should tackle with the client: What does successful resolution look like? I agree — sometimes the amount in dispute or the subject matter of the controversy points to a matter being heavily litigated until the issues are narrowed. Sometimes the parties just need the discovery process to see how a future resolution might be achieved through mediation.|
Second question: What strategic issues arise when appellate attorneys get involved at the trial court level?
|Posey:||There are two opportunities for the application of appellate strategy at the trial court. The first, and most traditionally thought of, is making sure the opportunity for success on appeal is maintained. This requires making an appropriate trial record and avoiding waiver in legal arguments on dispositive motions or procedural issues.|
The second is looking for the earliest avenue for appeal, to the extent it would bolster a party’s position. This includes certified questions of state law (if you’re litigating in federal court), as well as looking for interlocutory appeals on issues that significantly alter outcomes (discovery issues, arbitration, class certification and immunity issues).
|Hendershot:||I agree that the number one issue is “preservation, preservation, preservation.” The appellate lawyer can help identify running to ground the legal and factual issues that will need to be established in the record in the event of an adverse outcome.|
We’ve touched on this briefly, but what are the most important drivers of whether to appeal at all?
|Hendershot:||Again, the cost-benefit analysis comes into play. An interlocutory appeal slows the matter down — is the issue raised critical for success on the merits? And while no appellate lawyer likes to admit they may lose, the parties and the lawyers themselves have reputations before judges and courts that are always in the back of your head.|
|Posey:||The answer to this question often depends on aligning with the client’s goals. In damages cases, economically “rational” clients will factor the cost of the appeal and the potential outcomes in deciding whether to appeal, settle or just give up. For clients where money was not the primary objective — some other legal determination is the goal — clients often request that the appellate counsel handicap the potential outcomes. In private practice, sometimes those reputational concerns that Michael noted are less a driver than client satisfaction.|
Where does appellate strategizing begin for you? Do you talk to the trial counsel? Read the underlying opinion to be appealed? The briefs or motions practice?
|Posey:||First steps in taking over an appeal depend on the type of judgment giving rise to the opportunity to appeal. After a trial on the merits, you may not just jump into the transcript — reviewing the judgment, talking to trial counsel, relevant witnesses and other stakeholders regarding the potential issues will help focus the ultimate review (as well as assist with any post-trial motions necessary to focus the appellate issues). After a dispositive decision on motions, it may be easier or faster to just review the filings and then go through the interview process if appropriate to help identify the relevant issues for appeal.|
|Hendershot:||For me, it most often depends on the area of law. I like to get familiar with the subject matter before reviewing the actual case material. For areas of the Ohio Constitution that I have litigated frequently, I may already know the basics. For something I litigate rarely, like intellectual property issues, I would start with treatises and the main Supreme Court cases. The “pre-reading” helps frame my efforts before I review what was argued below|
We appreciate Michael’s insights and the opportunity to collaborate. As identified above, engaging experienced counsel can make important differences. Litigators who think about the impact of appellate issues greatly improve the possibility of cost-effective and successful outcomes.