Appellate

Advocacy

Appellate Advocacy

When a case enters the post-trial and appellate stages, significant changes occur that may cause a client to consider employing a new attorney to handle an appeal. Representation at the next level with attorneys who understand and are experienced at appellate litigation can be vital to the outcome of a case. Even if a party’s trial attorney is also an experienced appellate attorney, it is often a good idea to get a new attorney in order to get a fresh view of the case. A new attorney may well see issues that the trial attorney did not.

While the predominant skills required of a trial attorney are the ability to examine and cross-examine witnesses and to make persuasive arguments to a jury, the skills of an appellate attorney are quite different. A good appellate attorney is a skilled brief writer who knows how to condense a lengthy trial with hundreds or thousands of pages of transcript into a written brief that generally may not exceed fifty pages. Arguments that might be expected to persuade a jury have no place in the context of an appeal. In general, arguments regarding factual matters and credibility issues are no longer fruitful. Rather, the focus shifts to highly legal arguments regarding the rulings made by the trial judge, the jury instructions and other questions of law.

Consulting an appellate attorney before or during a trial may be advantageous if an appeal can be anticipated. An appellate advocate can help preserve errors so that an appellate court will be able to review them. If issues have not properly been preserved, appellate attorneys can help prepare post-trial motions for the trial court. These motions may either be successful in themselves or may at least insure that the issues are preserved for appellate court consideration.

We have more than eighty years combined experience arguing appeals in the state and federal appeals courts. We have won groundbreaking victories in the Washington Supreme Court and the United States Court of Appeals for the Ninth Circuit. We are familiar with the judges, the internal procedures and the personalities of these courts. We apply this in-depth experience earned in the Pacific Northwest to win victories for clients in state and federal courts from Alaska to Florida.

Our attorneys have experience handling complex appeals in many areas of the law, including constitutional law, evidence, labor and employment, insurance, products liability, negligence, wrongful death, civil rights, consumers’ rights, libel, malpractice, breach of contract, criminal law, family law, professional discipline and disbarment and dozens of other subjects.

Representative Appellate Cases

Civil Procedure/Discovery

  • Foss Maritime Co. v. Brandewiede, 190 Wn. App. 186, 359 P.3d 905 (Div. I, Sept. 14, 2015) (appellant). Reversed trial court’s order disqualifying defendant’s trial counsel on the eve of trial for alleged misconduct in review of documents provided by employer’s ex-employee containing allegedly privileged communications, after employer granted direct contact of ex-employee to counsel.  Obtained emergency stay of disqualification order and discretionary review to get case before the appellate court.
  • Bunch v. Nationwide Mutual Ins. Co., 180 Wn. App. 37, 321 P.3d 266 (2014) (Priority of Action rule)
  • Barabin v. AstenJohnson, 730 F.3d 457 (9th Cir. 2014) (en banc) (Daubert expert witness requirements)
  • Tatham v. Rogers, 170 Wn.App. 76, 283 P.3d 583 (Div. III., 2012) (appellant). Reversed refusal to vacate property division in underlying committed intimate relationship for trial judge’s failure to disclose material information on the relationship between  the woman’s counsel and the trial judge, and where the lopsided property division called into question its fairness given the circumstances and the law as to such divisions, non-disclosure was not harmless.
  • Foxworth ex. Re. Darden v. Kia Motors Corp., 2005 WL 2888216 (11th Cir. 2005) Successfully defended the summary judgment dismissal, on grounds of forum non conveniens and statute of limitations, of a double wrongful death action brought against client Kia Motors.
  • Magana v. Hyundai Motor America, 123 Wn. App. 306, 94 P.3d 987 (2004) Won a retrial for clients Hyundai Motor America and Hyundai Motor Corporation in a crashworthiness case involving paraplegic injury, by establishing prejudicial error caused by the failure to instruct a jury about the exclusion of wrongfully admitted alternative design evidence.
  • King v. Olympic Pipe Line Co., 104 Wn. App. 338, 16 P.3d 45 (2000) Corporate officer named as defendant in civil suit for wrongful death related to pipe line explosion could seek a stay of civil discovery, thereby avoiding potential self-incrimination, pending determination of whether there would be a criminal prosecution.
  • Washington State Physicians Exchange v. Fisons, 122 Wn.2d 299, 858 P.2d 1054 (1993) Won ruling that trial court must impose monetary sanctions against a litigant who engaged in deliberate discovery abuse and litigation fraud.

Constitutional Law

  • Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) Congressional policy excluding known homosexuals from the armed forces is subject to intermediate scrutiny, therefore an outed lesbian officer cannot be discharged without a finding that her presence has a bad effect on the morale and discipline of her assigned military unit.
  • Hargis v. Foster, 312 F.3d 404 (9th Cir., 2002) Reversed dismissal of Idaho prisoner’s First Amendment claim and remanded to determine whether discipline of prisoner speech violated the constitution.
  • Levinson v. Washington Horse Racing Commission, 48 Wn.App. 822, 740 P.2d 898 (1987) Revoking wife’s horse racing license because her husband had a prior felony conviction violated wife’s constitutional right to freedom of marriage.
  • Seattle v. Braggs, 41 Wn.App. 646, 705 P.2d 303 (1985) Reversed dismissal of an appeal due to the trial court’s failure to properly advise the appellant of the timeliness requirements for filing appeals.
  • Seattle v. Camby, 104 Wn.2d 49, 701 P.2d 499 (1985) Case of first impression in Washington regarding the test to be employed in matters involving “fighting words.” Appellant’s conviction under municipal harassment ordinance unanimously reversed by the Washington Supreme Court, which dismissed the charge.

Criminal Law

  • State v. King & Israel, 113 Wn.App. 243, 54 P.3d 1218 (2002), rev. den., 149 Wn.2d 1015 (2003) Reversed four convictions for instructional error on conspiracy charges, which permitted finding of guilt for accomplice liability based on reasonable forseeability of acts rather than knowledge of the specific substantive crimes charged.
  • State v. Stein, 144 Wn.2d 236, 27 P.3d 184 (2001) Murder convictions reversed because trial court erred in instructing jurors regarding the vicarious liability of a co-conspirator for the acts of other conspirators.
  • State v. Letourneau, 100 Wn. App. 424, 997 P.2d 436 (2000) Sentencing judge exceeded her authority when she forbade convicted defendant from profiting by selling her story to news magazine.
  • State v. Stegall, 124 Wn.2d 719, 881 P.2d 979 (1994) Conviction reversed because defendant did not waive his state constitutional right to a jury of twelve.
  • In Re Young, 122 Wn.2d 1, 857 P.2d (1993) (amicus) Argued against Washington’s new involuntary, lifetime civil commitment law for sexual predators.
  • Seattle v. Mesiani, 110 Wn.2d 454, 755 P.2d 775 (1988) Washington Supreme Court held, without dissent, that roadblocks set up by law enforcement agencies to identify motorists driving under the influence of alcohol are unconstitutional under state law due to the absence of particularized suspicion.

Please see www.seattlecriminalappeals.com for more information regarding criminal appeals.

Education and Administrative Law

  • M.L. v. Federal Way School District, 387 F.3d 1101 (9th Cir. 2005), amended by 394 F.3d 634 (9th Cir. 2005), cert. denied, 545 U.S. 1128 (2005) Autistic child’s right to a properly developed individual education plan was violated by failure to put correct people on education team.
  • Hunter v. U.W, 101 Wn.App. 283, 2 P.3d 1022 (2000), rev. den., 142 Wn.2d 1021 (2001) Reversed denial of administrative appeal; mandated grant of tuition wavier to law student because the University of Washington was required to follow administrative rule-making in adopting policies; awarded fees under EAJA.

Family Law/Community Property

  • Farmer v. Farmer, 172 Wn.2d 616, 259 P.3d 256 (2011). In marital dissolution context, affirmed trial court’s tort-based “make whole” measure of damages for employee stock options converted by soon-to-be-ex-spouse, based on stock value appreciation to date of potential exercise discounted to present value, where options were increasing in value and exercisable over many years.
  • Tatham v. Rogers, 170 Wn.App. 76, 283 P.3d 583 (Div. III., 2012) (appellant). Reversed refusal to vacate property division in underlying committed intimate relationship for trial judge’s failure to disclose material information on the relationship between  the woman’s counsel and the trial judge, and where the lopsided property division called into question its fairness given the circumstances and the law as to such divisions, non-disclosure was not harmless.
  • Marriage of Katare, 125 Wn. App. 813, 105 P.3d 44 (2004), rev. den., 155 Wn.2d 1005 (2005) Relocation/child custody appeal; vacated two-county travel restriction for visitations and remanded to clarify intent and rulings on permanent international travel restrictions.
  • Marriage of Possinger, 105 Wn. App. 326, 19 P.3d 1109 (2001), rev. den., 145 Wn. 2d 1003 (2002) Affirmed trial court’s retention of jurisdiction for later determination of permanent parenting plan when, at time of divorce, circumstances were inadequate to determine permanent plan.
  • Keene v. Edie, 131 Wn.2d 822, 935 P.2d 588 (1997) Overruled, 9-0, Brotton v. Langert, 1 Wash. 73, 23 Pac. 388 (1890), to correct construction of community property statutes and permit victim to recover from tort-feasor’s interest in community real property where other resources were exhausted or inadequate.

Health Care

  • Glasebrook v. Mutual of Omaha, 100 Wn. App. 538, 997 P.2d 981 (2000) (health care regulations)
  • In re K.R.P., 160 Wn. App. 215, 247 P.3d 49 (2011) (genetic testing to determine parentage)

Immigration

  • Hamoui v. Ashcroft, 389 F.3d 821 (9th Cir. 2004)

Insurance Coverage

  • Akhavuz v. Moody et al, 178 Wn. App. 526, 315 P.3d 572 (Div. I, 2013) (appellant).  Reversed vacation of default judgment in premises liability case to provide recovery for plaintiff, holding there is no such thing as an “innocent insured doctrine” that allows for vacation of a default judgment a year after it had been entered, where no defense was made and the defendant was promptly served with complaint, case schedule, and complete discovery requests
  • Abbott v. CUNA Mutual Ins. Soc., 102 Wn. App. 519, 7 P.3d 852 (2000) (amicus) Argued in favor of public policy ban on care-takers insuring the lives of their patients and disallowing life insurance recovery by quadriplegic’s caretaker.
  • Schwindt v. Underwriters at Lloyd’s of London, 81 Wn. App. 293, 914 P.2d 119 (1996)

Labor and Employment

  • Lund v. San Joaquin Valley R.R., 1 Cal. Rptr. 3d 412, 71 P.3d 770 (2003) Persuaded the California Supreme Court to overturn a thirty-three year old precedent and align California with the emerging majority rule under which juries in Federal Employer Liability Act cases may not be informed as a matter of course that a FELA recovery is a railroad worker’s primary source of compensation for on-the-job injury.
  • Hill v. BCTI, 144 Wn.2d 172, 23 P.3d 440 (2001) (employment discrimination)
  • Ackler v. Cowlitz County, 2001 WL 115019 (9th Cir., 2001) Reversed denial of double damages; reversed refusal to award third year of damages for willful violation of Fair Labor Standards Act for overtime for sheriffs’ deputies; awarded fees on appeal.
  • Goeble v. Fred Hutchinson Cancer Research Ctr., 100 Wn. App. 609, 1 P.3d 579 (2000) (employment discrimination)

Medical Malpractice

  • Fergen v. Sestero, 182 Wn.2d 794, 346 P.3d 708 (March 12, 2015). The Court upheld, 5-4, continued use of the “exercise of judgment” instruction in medical malpractice cases claiming a mis-diagnosis. The majority held the instruction may continue to be used in proper cases over a strong challenge to eliminate the instruction entirely, and a strong dissent from Justice Stephens.  The majority incorporated the amicus analysis that the instruction is a necessary “tool in the toolbox” for trial judges.
  • Keck v. Collins, 184 Wn.2d 358, 357 P.3d 1080 (Sept. 24, 2015). Affirmed the requirement of experts to state specific facts supporting opinions at summary judgment in medical negligence cases, declining to overrule Guile v. Ballard Hospital, 70 Wn. App. 18 (1993). Adopted the amicus brief’s suggestion to require trial courts to use the test developed in Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997) and its progeny when deciding to exclude late-filed evidence at summary judgment.
  • Anya-Gomez v. Sauerwein, 180 Wn.2d 610, 331 P.3d 19 (June 19, 2014). The Court held 5-4 that, in a misdiagnosis case, the informed
  • Miller v. Phillips, 959 P.2d 1247 (Alaska 1998) Successfully defended judgment on jury verdict in a medical malpractice case, involving claims of obstetrical negligence.

Probate

  • Estrada v. McNulty, 98 Wn. App. 717, 988 P.2d 492 (1999) Vacated award of pension death benefits to deceased’s ex-wife and awarded benefits to client because statute in effect at time of death did not require that the designated beneficiary have an insurable interest in the deceased. Obtained appellate stay to preserve benefits during appeal.

Real Property

  • Tom Moyer Theatres v. Walker, 185 Wn. App.1060 (2015) (obtained reversal of trial court decree of specific performance allowing another party the right to relocate utilities onto client’s land; awarded attorney fees on appeal).
  • Bank of America v. Prestance Corp., 160 Wn.2d 560, 160 P.3d 17 (2007) Persuaded the Washington Supreme Court to adopt the approach of the Restatement (3rd) of Real Property to equitable subrogation of real estate financing liens, under which junior lienor and client Wells Fargo was entitled to receive funds to the extent of its payoff of a senior lienor notwithstanding the existence of unsatisfied intermediate liens.
  • Swinomish Indian Tribal Community v. Island County, 87 Wn. App. 552, 942 P.2d 1034 (1997) Tribe’s rights under Indian Graves and Records Act were not violated by county.
  • Keene v. Edie, 131 Wn.2d 822, 935 P.2d 588 (1997) Overruled, 9-0, Brotton v. Langert, 1 Wash. 73, 23 Pac. 388 (1890), to correct construction of community property statutes and permit victim to recover from tort-feasor’s interest in community real property where other resources were exhausted or inadequate.

Taxation

  • Grays Harbor Energy, LLC v. Grays Harbor County, 151 Wn. App 550, 213 P.3d 609 (2009) (characterization of power plant equipment for property tax)
  • Ski Acres, Inc. v. Kittitas County, 118 Wn.2d 852, 827 P.2d 1000 (1992) Held state law providing for an “admissions tax” did not authorize county to impose a tax on ski lift tickets where there was no charge for permission to enter the ski resort area.

Wrongful Death

  • Millican v. N.A. Degerstrom, Inc., 177 Wn. App. 881, 313 P.3d 1215 (2013), review denied, 179 Wn.2d 1026 (2014). Reversed judgment on jury verdict for defendant general contractor where trial court erred in admitting evidence of contract provision that delegated safety responsibility to subcontractor.
  • Hyundai Motor America v. Applewhite, 50 So.3d 749 (Miss. 2011) (multiple wrongful death)

Other

  • Baseball Club of Tacoma v. SDL Baseball Partners, LLC, 187 Wn. App. 519, 348 P.3d 1283 (2015) (anti-SLAPP)
  • Department of Labor & Industries v. Tesoro Refining & Marketing Co., LLC, 186 Wn. App. 240, 347 P.3d 63 (2015) (statutory writ requirements)
  • City of Tacoma v. City of Bonney Lake, 173 Wn.2d 584, 269 P.3d 1017 (2012) (municipal indemnification obligations)
  • Angelo Property Co. v. Hafiz, 167 Wn. App. 789, 274 P.3d 1075 (2012) (unlawful detainer)
  • Cummings v. Budget Tank Removal & Env. Servs., 163 Wn. App. 379, 260 P.3d 220 (2011) (arbitration)
  • 16th Street Investors, LLC v. Morrison, 153 Wn. App 44, 223 P.3d 513 (2009) (agreement to agree)
  • Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008) (duty to warn of hazards caused by another’s product)
  • Seattle v. Burlington Northern Railway Co, 145 Wn.2d 661, 43 P.3d 1169 (2002) (federal preemption of local railroad regulations)
  • Sedwick v. Gwinn, 73 Wn. App. 873, 873 P.2d 528 (1994) (fraudulent transfers)

Appellate Advocacy

Attorneys

Jason W. Anderson

JASON W.
ANDERSON

Appellate Advocacy,
Civil Litigation, Insurance Regulation,
Insurance Defense
Michael B. King

Michael B.
King

Appellate Advocacy
Linda B. Clapham

Linda B.
Clapham

Appellate Advocacy
Insurance Coverage
James E. Lobsenz

James E.
Lobsenz

Legal Ethics, Appellate Advocacy
Civil Rights, Constitutional Law
Criminal Litigation
Rory D. Cosgrove

Rory D.
Cosgrove

Appellate Advocacy
Civil and Commercial Litigation
Insurance Defense
Gergory M. Miller

Gregory M.
Miller

Appellate Advocacy,
Health Care,
Labor & Employment Law