The latest episode of the AZ Big Podcast with Michael & Amy has officially dropped. Episode 258 features Daryl Manhart, shareholder at Burch & Cracchiolo, who talks about how to win an appeal.
Listen to more of the AZ Big Podcast here.
Transcript:
Michael Gossie
Welcome to the AZ Big Podcast, sponsored by Burch & Cracchiolo. I'm Michael Gossie, Editor-in-Chief at AZ Big Media, and I'm joined by my co-host, our Vice President and publisher, Amy Lindsey. Amy?Amy Lindsey
This is going to be an interesting one.Michael Gossie
This is going to be super interesting. We're going to learn all about appeals today. Happy to have in the studio Daryl Manhart, partner at Burch & Cracchiolo. Daryl, thank you so much for being here today. I appreciate it.Daryl Manhart
You're very welcome.Amy Lindsey
So Daryl, start off first. Tell us about the focus of your legal practice.Daryl Manhart
My legal practice is kind of diversified. Partly, I'm here as an appellate attorney. Appellate attorneys need to know a lot about almost all areas of law, at least, I should say, a broad area.So I practice in a lot of civil practice areas and mostly focus on commercial transactions and litigation outside of the appellate work. In appellate work, I've only done one criminal appeal, but everything else is civil from the gamut of family law, tort law, commercial disputes. Appeals sort of can cover almost anything.
Michael Gossie
Wow, so you really have to kind of have your finger on the pulse of almost every kind of legal practice.Daryl Manhart
That's true. As the cases come out, at least the published ones, I keep up by reading the cases as they're issued by the appellate courts, at least the ones here in the state. I don't follow all of the federal ones, but I follow some of those.Amy Lindsey
You must be an avid reader, because there's a lot of cases coming out.Daryl Manhart
There is a lot of reading, yes.Michael Gossie
So what makes appellate law different from trial law?Daryl Manhart
Well, in the trial court, some cases are decided at trials and some on dispositive motions ahead of time. But if I stick mostly with trials, because people conventionally think of that, trials are more disjointed, I might say. Evidence doesn't come in in a natural chronological sequence.They come in one witness at a time, one exhibit or document at a time. So the trial lawyer has to construct things that way, and then closing arguments, their opportunity to summarize it at the end. But it comes in that sort of disjointed way.
And you have, at the same time, another attorney opposing you and objecting and things and trying to interrupt that flow. And you're also dealing with the judge in a live fashion on trials. The appellate attorney is dealing with a closed record.
Some people may think it's a do-over. Clients may. But there's no new evidence, no new witnesses.
The client has virtually no role in the appeal. It's on the record. The appellate attorney is going through that record, which might be testimony, transcripts of testimony, rather, the documents, all the paper filings, and constructing a story.
And then you get into a more natural storytelling method, which is the appellate lawyer is now going to take all these disparate elements and try to convert them into a story that flows more chronologically with different pieces of the story coming in from different witnesses and evidence as they came in. And it's also, I don't mean to use the word so it's casting aspersions on the trial attorney, but it's a more intellectual aspect. The credibility issues are decided in the trial court.
Once you get to the appellate court, the facts basically are whatever you can show in the record that support the ruling. I guess I should clarify that. That depends on whether it was a dispositive motion or a trial.
But after a trial, the record's construed in favorable of the judgment. So you have to construct your story differently. You can think of it more like an autopsy of the record, figuring out what worked or what didn't work.
Amy Lindsey
That's a great way to look at it.Michael Gossie
That's a great analogy.Daryl Manhart
And then you translate that into a book form. People, they hear there's a brief. And the brief is basically culling all of that evidence down into a format that fits the page or word limitations that the rules prescribe.So you might have a three-week trial, but you only have 14,000 words you have to condense it to for your brief. So there's some different skills involved. It's more of a writing skill than the drama or theatrics that can occur in the trial.
Amy Lindsey
So when should a trial lawyer bring in an appellate attorney?Daryl Manhart
Well, of course, as my business, I'm going to say as early as possible. Conventionally, people may think of you call up the appellate attorney after the result, whether you won or lost, and someone, you know, there's going to be appeal. Are you going to call then?And that happens with a high degree of frequency. It also happens the appellate attorney might get called after the time's already running to file the brief. And from my perspective, that's disadvantageous.
I've got less time. But earlier can be better because there are things the trial attorney who's trying to, I don't know if you want to think of it as juggling balls or something else, is watching a lot of different things during the trial. And having the appellate attorney come in at an earlier stage can be helpful in watching the things that are meant to protect the record, which is to make sure not just that objections are made, but that they're made clearly.
Things don't happen off the record. That's less of an issue now because there's so much technology and recording in the courts. But if I go back earlier days, there were lots of things that were done in chambers with no court reporter present.
For instance, objections to jury instructions. And if you're on the losing end of an issue, or at least an issue you need, I guess you could be on either end. If there's an issue you need to challenge, you want to make sure those things are in the record.
Having the appellate attorney there is someone who's focused on preserving that record. Also things, just sort of a logistics or practical matter I've seen too, is you can see sometimes when witnesses are testifying, they might gesture or point to something. It might be something on a screen or on an easel.
And when they say something like this and that, and if I gesture toward you, Michael, then I gesture toward Amy. But if I don't say that, the record just says that person said something, and then that person said something. So as an appellate attorney, I'm sort of aware of that.
And I did have an appeal where that's the record I got. And I had to make the trial attorney sit down with me with the exhibit and the transcript and tell me what the witness was pointing to at each time, because there was no way to tell it from the record. So there's things like that.
There's also things that need to be renewed. A motion that's made, for instance, people may be familiar with directed verdict. At the end of a plaintiff's case, the defendant counsel will move for a directed verdict, meaning end the trial in favor of the defendant at that point.
If that's denied and the case goes on, you need to remember to renew that motion at the end of the entire case. And there's things like that that the appellate attorney is alert to and will watch and make sure those things get into the record. Also, appellate attorney is a writer.
So they may be very helpful in writing some of the pretrial motions, the motions in limine, which have to do with evidence, motions for new trial, things like that. So having that appellate attorney involved early can be a benefit. Not all cases have the economics to justify that.
But if you can, there's certainly many benefits to it.
Michael Gossie
So as an appellate attorney, have you ever been able to come early into a case and maybe change what the verdict might have been?Daryl Manhart
Well, it's hard to tell if you've changed the verdict unless you can poll the jury afterwards and ask them, and they say that was the turning point. So I have had some cases.Michael Gossie
Well, you can take some credit.Daryl Manhart
Sure. Sure. If we win, then it's because of me. And as an appellate attorney, if I lose later, it's always, well, the trial attorney lost it for me at the trial level, so what could I do? But yeah, I've certainly sat through some trials or portions of trials.I remember one where, I don't know whether I would say I was actually brought in because I was an appellate attorney, but I went through the trial with one of my colleagues. It was an issue that had to do with a commercial escrow. And it had to do with negligence, and that's why he was trying, because he was a tort attorney.
But it had to do with the commercial escrow, and I was more familiar with that. So I was both feeding him questions. And whenever we had arguments at the bench in front of the judge outside of the jury, I made those arguments.
So he was more comfortable with that division of labor. And I would like to think that my contribution helped in the win. Whether I can claim sole credit, I don't think I should do that. It's a team sport.
Michael Gossie
We'll give you credit. We have so many questions for you, but before we get to them, I have to say, at Birch and Cracchiolo, there is nothing artificial about their intelligence. While Birch and Cracchiolo wholeheartedly embraces technology and all the ways it can increase productivity, nothing will replace the sound judgment, wise counsel, and humanity of an attorney who is vested in you, your business, and your family.Birch and Cracchiolo attorneys will be there for you no matter what your need. They are your partner for life. Learn more at bcattorneys.com.
That's bcattorneys.com.
Amy Lindsey
So Daryl, what are some big trial mistakes that can hurt and heal?Daryl Manhart
Well, I'm going to reiterate, I think, some of the things I've said is failing to make an objection. I suppose one thing I might point out is evidence. If you're the proponent of some piece of evidence, some testimony or an exhibit, and you are trying to get it admitted or the judge to allow it, and the other side is successfully objecting, you need to make an offer of proof, which is a legal phrase, but it's where you put on the record the evidence you intended to have admitted.So that's going to be done outside the presence of a jury. If it's a jury trial, if it's in front of a judge, the judge is presumed to be able to compartmentalize that in his or her mind and make the difference. Because on appeal, you can't show that the evidence, you can't argue that it would have changed the result if you can't show the court what that evidence was.
So just to pick that as an example, that's one thing where I'd want to make sure the trial attorney did that, or I've been deprived of making that argument on appeal.
Michael Gossie
So you talked a little bit about how you're taking weeks of a trial, and you have to condense it down into about 14,000 words. How do you identify those points that are going to make an appeal successful? Out of all that information, how do you boil it down and decide which is the most important?Daryl Manhart
Sure. Well, the first thing I'm looking for is, well, I guess if I'm the appellant, and I would be devil's advocate if I'm going to represent the appellee, the winner below, and trying to think of what the appellant might argue. But as an appellant, I'm going to be looking at, what do I think might be reversible error?And that might be the admission of a piece of evidence or the exclusion of a piece of evidence, or it might be a legal question. The judge misconstrued a statute or a contract provision. I'm looking for that.
Then the next question is going to be, did my trial court colleague preserve the error? So was that argument made? Was it an objection that was made?
We talked about offer of proof. If it was exclusion of evidence, is that evidence in the record either because it was attached to something, or there was an offer of proof made, such as with testimony? And then I'm going to decide, do I think it affected the outcome?
Because there's harmless errors and expressions sometimes used. There are things that you might convince an appellate court were incorrect, but the appellate court's not going to be convinced it changed the outcome. So to make up some sort of hypothetical, if you had five witnesses testify to something, and one of them you think you've got a good argument that they weren't qualified to testify about that, or it was hearsay as far as they were concerned, convincing an appellate court that that was an error is not going to get you a reversal if there are four more witnesses saying the same thing.
It would be harmless error. There's also invited error, where you want to argue something is error, but they can point to something your colleague did or said that prompted that evidence to come in. That would be invited error, where the person complaining caused the error, and you're not allowed to get a reversal based on that either.
Amy Lindsey
So what are some of the biggest misconceptions about the appellate courts?Daryl Manhart
Well, I think I sort of referenced there. The clients sometimes think that it's a do-over, that they're going to get to come in and provide some more evidence. You're going to cross-examine somebody and get the court to see that they were not telling the truth, and that's not the case.The record's closed. No new evidence. Other things, maybe from maybe an attorney's perspective, is some attorneys who don't really do appeals that work only in the trial court may not appreciate how much more work there is in doing the research that maybe they felt they did adequately, but there's always more that can be done.
And when you're up at the appellate level, well, I guess maybe to contrast, trial judges usually don't have any attorney-trained staff. They have staff, bailiffs and clerks and things. They don't have the luxury of having law student clerks or staff attorneys to help them with research and going through things.
They have to do a lot of work themselves. When you get to the Court of Appeals, to pick that example, it's a three-judge panel. Supreme Court is seven now.
Ninth Circuit also uses three-judge panels in the federal system. They have law clerks, sometimes more than one assigned to them, who are law school graduates, maybe even admitted lawyers, and they have staff attorneys who are permanent employees of the court who can help them go through the record, research things. So back to the appellate attorney's role, the appellate attorney needs to do a really thorough review of case law, statutes and case law, because the argument's going to be more on that level, whereas the trial attorney is focused on the law as well as getting in the facts.
As I said, the record's closed on facts when it goes up to the appeal. So the focus switches more to the intellectual arguments, and that's where I think some trial attorneys don't have that experience. Some do, some don't.
And they may not appreciate how much more work's going to be involved.
Michael Gossie
I know you might not be able to talk about specifics, but is there an appeal that you worked on that you were able to get the decision reversed that really gives you a lot of pride? You're like, I did the right thing. I ended up getting the right verdict in the end.Daryl Manhart
Well, when I win, that's what I expected. And even from an ethical viewpoint, I don't make an argument that I don't think's a valid argument upon which I can win. So while I don't want to advertise losses, it's the ones where you lose something that you don't understand how you could possibly lose that that stick with you more.Michael Gossie
Isn't that how life is, though?Daryl Manhart
It is. I mean, again, I probably shouldn't talk too much about a loss. But I mean, I had one many years ago where I was the appellant.So statistically, I have the harder job to convince anyway. But I felt it was mostly a matter of statutory construction of a federal statute. I spent a lot of time both going through the record, going through legislative history for the statute, looking at how the statute had been amended and how those amendments supported the argument I was making.
And I constructed an argument that I was pretty proud of. And my opposing attorney, I have to credit with being a great gentleman, called me up before oral argument to tell me I was going to win. He was acknowledging I'd done a better job writing it than he was.
He expected me to win and him to lose. That's not the outcome. I was a three-judge panel.
And I did get a dissent in my favor. But two judges ruled against me. And I don't get to interview the judges and find out later.
But my suspicion was I was representing an industry that's very unpopular with consumers. And I feel that that had an effect on it. And those things happen.
I mean, many lawyers will tell you the hardest things are when you lose the no-brainer. Something you went down to court expecting it was going to be easy. And the judge had a different perspective on it.
But back to the ones that I win, like I said, if I win them, that's because I made an argument that I expected to win.
Amy Lindsey
That's great. Good for you. So what advice would you give anyone considering an appeal?Daryl Manhart
Well, I guess it might vary somewhat. Is it the client or is it a fellow lawyer? With the client, you sometimes have to disabuse them of what's possible.And that's going to be, like I said, there's no new evidence. The record's closed. But also, the client needs to appreciate maybe what's the cost of an appeal.
I don't just mean the monetary expense because it does cost money. But also, is the outcome going to be good for you? I mean, I guess I should maybe back up and say, is the issue that they think so great one that I think would reverse it?
But also, what's the outcome? So for instance, I might have a client who's already spent a lot of money on the case and it was disposed of, not at trial, but on a dispositive motion, motion to dismiss or for summary judgment. And if they win, all they're going to get is the right to go back to the trial court and maybe win or lose there.
I can't get a judgment in their favor. I can only get them a chance to go again in the trial court. And especially in a case, if there's no right to attorney's fees, then you're having to have a hard conversation of, you already spent x dollars.
You're going to spend y dollars on the appeal. And if I win for you, you're going to go back and spend more money and maybe win or lose. And you're never going to get any of that money as part of the award.
That's the question where, and if the client agrees with me, I'm not going to be doing that appeal because I've successfully pointed out to them that this doesn't make sense in your case. So that's one thing.
Amy Lindsey
That's great.Daryl Manhart
Other things similar with the trial attorneys. Trial attorneys become invested in their own case. If you think of things like the sunk cost, sometimes talked about with other things we do in life.And they get very invested in some arguments that they've been making that may or may not have been successful in the trial court, but don't translate into an appellate argument. It's just, there's no point in continuing to argue this. It hasn't worked so far.
I can't bring in any new evidence, so it's not going to work on appeal. We need to find a different issue. And that can be a tough conversation sometimes as well.
Michael Gossie
That's great.Amy Lindsey
That’s great advice, thank you.Michael Gossie
Fantastic information. It's a fascinating, fascinating conversation.I learned so much that I never knew before today.
Amy Lindsey
Me either, and I watch a lot of crime shows.Michael Gossie
Well, thank you for listening to the AZ Big Podcast with Michael and Amy.For the latest and greatest business, real estate, and lifestyle news, check out the all new azbigmedia.com. Once again, thank you to our sponsors, Burch & Cracchiolo, and thank you to Daryl Manhart, partner at Burch & Cracchiolo. Great, great conversation.
Thank you so much for being here.
Daryl Manhart
Thank you, Michael and Amy.Amy Lindsey
Thank you, Darrell. Appreciate it.