I have just submitted my brief to the Court of Appeals for an appeal that I am handling, which is what happens sometimes when you win a trial in such monumental fashion that the other side appeals.
About five years ago, I had two appeals pretty much back to back.
I was the respondent in both, as in my current case, which means it wasn’t my idea to appeal the case, but the other side saw fit to do so.
This is, I believe, the sixth or seventh appeal I’ve handled in my legal career.
While that may not sound like many, it’s six or seven more than most lawyers, I’d venture to say.
I had high hopes that I would never have to do this again. As I say, it’s quite a project.
Between the actual brief I wrote, the appendix, and a compilation of exhibits, my submissions total some 90 pages, give or take.
And again, this trip to the Court of Appeals was not my idea. But here we go.
My opponent in this appeal is an appellate expert. It’s all he does. After having their head handed to them at trial, the other side went out and hired one of the leading appellate lawyers on this side of the state to handle it.
Before this, I only knew my opponent by reputation.
And I assumed that since he is at the top of the heap of lawyers handling the heady work of appeals on a constant basis, I just assumed he’d be smart as heck, and pompously arrogant.
Well, he is smart as heck, no doubt about that. But arrogant? Nothing could be farther from the truth. Instead he is affable, pleasant and humble. It’s always refreshing when you see a very top attorney who is also a nice, pleasant person, and a respectful opponent.
That’s the way it should be.
From here we will get scheduled for oral argument, in which the lawyers appear before a panel of three judges from the Court of Appeals, and argue the issues before them.
Some weeks later, the Court will issue an opinion deciding the appeal, which will then go in the books for posterity, another piece of common law on the books in our good state.
This is how case law is made, from appeals. One side or the other, and sometimes both sides, file an appeal, and allege that the trial court committed a reversible error, and the result should be changed.
Some trial court judges take getting appealed a bit personally. They don’t like the Court of Appeals issuing a published opinion that they erred in a case, and the result set aside.
Some are not that way. They take the approach that they are doing their best to handle and decide cases, and if one side or the other can convince the Court of Appeals that they were in error, well that’s just fine. It’s part of the checks and balances.
I also have come to sense over the years that the Court of Appeals, in deciding whether a trial judge erred, gives some consideration to the quality and reputation of the judge being appealed.
I think I’m in pretty good shape on this one. Our trial judge in this case enjoys a great reputation. She was my classmate at MU Law School back in the day. And she was very careful in the handling of this case at trial.
Plus, she has been a finalist for appointment for the last two or three openings to the very Court of Appeals we are going to be in front of. I believe it is just a matter of time – likely the next vacancy – when she will be a judge on that court.
Of course, she would be disqualified from participating in the appeal of her own case. But I do like the idea that they’ll be reviewing a possible soon-to-be colleague on the Court.
As the respondent who is defending her work at trial, I kind of like our chances.
– Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org.