Determined advocacy. Invaluable insight.
Our appellate advocacy team combines experienced trial lawyers who know how to develop arguments that best position our clients for appeal as well as appellate practitioners who have a thorough command of appeals procedure and nuance. We are uniquely skilled and experienced to handle the many critical issues our clients face in the appeals process, from evaluating the prospects of an appeal, to identifying settlement alternatives, to crafting and advancing the best possible argument based on the trial record.
Our attorneys have represented clients in landmark appellate cases around the country and helped shape precedent in complex areas of the law. We excel at prosecuting and defending appeals within our footprint, drawing on our long, successful track record in the Sixth and Seventh Circuits and the state appellate courts of Indiana, Kentucky, Ohio, Tennessee, Texas and West Virginia.
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What Sets Us Apart
Preparation for an appeal begins before trial. Our appellate advocates understand the risks and deploy a wide array of proven tactics to control those risks from the outset. Among other things, we are skilled at identifying issues to present in pretrial motions, drafting jury instructions and post-trial motions and ensuring that evidentiary rulings are preserved for appeal. We also work closely with clients and invest time to better understand their business and how a decision may affect their business moving forward.
The most difficult legal problems require more than knowledge of the facts and the law — they require thinking creatively about the law. Our appellate practitioners possess a comprehensive understanding of the complex legal framework of administrative rules, regulations and statutes. Many of us began as lawyers in administrative regulatory agencies. We not only know how to proactively manage critical timing and procedural challenges, but we also have the skill and savvy to artfully craft arguments to maximize the likelihood of discretionary review by various appeals courts.
We draw on our wealth of experience handling appellate cases related to the following areas of the law:
- Civil rights and constitutional law
- Government contracts
- Health law
- Intellectual property
- Product liability
- Tax law
The most successful trial attorney oftentimes is unfamiliar with the intricacies demanded for appellate practice and procedure. Experience is paramount. Our appellate team includes attorneys with more than 150 reported appellate decisions and more than 50 oral arguments before various appellate courts. The following are illustrative:
United States Supreme Court
Perdue v. Kenny A. ex rel. Winn, 599 U.S. __, 130 S. Ct. 1662 (April 21, 2010)
On behalf of the National School Boards Association, we filed an amici brief in this case addressing the question of: “Can a reasonable attorneys fee award under a federal fee-shifting statute ever be enhanced based solely on quality of performance and results obtained when these factors already are included in the lodestar calculation?” The U.S. Supreme Court adopted our position and held that absent extraordinary circumstances, it cannot. Click here to read the brief.
United States Courts of Appeals
Alliance Health Group LLC v. Bridging Health Options LLC, 553 F.3d 397 (5th Cir. 2008)
This case of first impression in the Fifth Circuit involved an issue of interpretation of forum selection clauses on which three other circuits had split. We successfully argued that a clause requiring litigation “in” a particular county permitted litigation in federal court, and not just the state court for that county, so long as the federal courthouse was physically located in the county in question.
Mayer v. Monroe County School Corp., 474 F.3d 477 (7th Cir. 2007)
We successfully represented a school corporation in an appeal in which the Seventh Circuit held that the First Amendment does not entitle a teacher to advocate her viewpoint on antiwar demonstrations during a classroom exercise.
Scovill v. WSYX/ABC, 425 F.3d 1012 (6th Cir. 2005)
In this employment discrimination lawsuit, we successfully urged the Sixth Circuit to reverse the district court’s severance of certain aspects of an arbitration agreement while affirming the district court’s findings that the dispute was arbitrable and the arbitration clause lawful.
Simon Property Group v. mySimon, Inc., 282 F.3d 986 (7th Cir. 2002)
We successfully represented a company which provided comparison shopping services on the internet against trademark infringement and other claims.
Mays v. Trump Indiana, Inc., 255 F.3d 351 (7th Cir. 2001)
We successfully represented Trump Indiana, Inc. in securing the reversal of a jury verdict awarding potential investors $1.4 million in damages for breach of contract, on the grounds that the agreement was merely an agreement to agree that was unenforceable under Indiana law.
Gaines-Tabb v. ICI Explosives USA, 160 F.3d 613 (10th Cir. 1998)
Representing the manufacturer of the fertilizer allegedly used by Timothy McVeigh in the Oklahoma City bombing, we persuaded the Tenth Circuit to affirm the decision that there is no duty to anticipate and prevent a terrorist’s criminal misuse of a product.
Gable v. Patton, 142 F.3d 940 (6th Cir. 1998)
Representing the Governor of Kentucky, we successfully defended Kentucky’s sweeping campaign finance reform law.
Queen City Pizza v. Domino’s Pizza, Inc., 124 F.3d 430 (3d Cir. 1997)
Representing franchisees against their franchisor, we urged the Third Circuit to recognize a claimed tying arrangement in the aftermarket for ingredients and supplies used by franchisees to make the product sold under the franchisor’s trademark, at the time a cutting edge issue in franchising antitrust law. By a 7-6 vote, the Third Circuit declined to rehear en banc the 2-1 decision of the panel. See 129 F.3d 724.
Supreme Court of Indiana
Marion County Election Bd. v. Schoettle, 899 N.E.2d 642 (Ind. 2008)
We represented the Marion County GOP, obtained emergency Supreme Court transfer and then received a favorable decision in an election matter on the eve of the 2008 General Election.
Alberici Constructors, Inc. v. Ohio Farmers Insurance Company, 866 N.E.2d 740 (Ind. 2007)
We successfully argued before the Indiana Supreme Court in behalf of the Surety Association of America, in a case which established that coverage under a performance bond is not extended to any entity more remote than a second tier labor or material supplier on a state highway project.
Schultz v. Ford Motor Company, 857 N.E.2d 977 (Ind. 2006)
We successfully represented Ford Motor Company before the Indiana Supreme Court in affirming a jury verdict for the manufacturer. The issue on appeal was the continuing effect to be given an evidentiary presumption accorded to a Federal Motor Vehicle Safety Standard.
Northwestern School Corporation v. Linke, 763 N.E.2d 972 (Ind. 2002)
Successfully defended school drug testing policies against Indiana Constitutional challenge.
Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979 (Ind. 2005)
Appellate court ordered Complaint dismissed because our attorneys successfully established an administrative review requirement had not been met.
Supreme Court of Kentucky
Fletcher v. Stumbo, 163 S.W.3d 852 (Ky. 2005)
We represented the Office of the Governor before the Kentucky Supreme Court in an appeal concerning the constitutional power of the Governor to continue the operations of state government following the legislature’s failure to enact a budget. In a case of first impression, we successfully argued that the Governor had the authority to continue expending funds in the absence of a budget for, among other things, state services guaranteed by the state constitution, including the operation of public schools, and to comply with federal mandates.
Fletcher v. Graham, 192 S.W.3d 350 (Ky. 2006)
We represented the Office of the Governor in an appeal concerning the scope of the Governor’s constitutional pardoning power. We prevailed 4-2 in the Kentucky Supreme Court in a case of first impression. We successfully argued that the Governor’s pardoning power includes the power to pardon whole classes of individuals, in addition to pardoning individuals by name, and that the effect of such a pardon is to preclude grand jury indictments, as well as criminal prosecution. We also prevailed on the argument that the effect of the Governor’s amnesty was to prevent a state grand jury from naming amnestied individuals who could not be indicted in a grand jury report.
Indiana Court of Appeals
AGS Capital Corp. v. Product Action International, LLC, 884 N.E.2d 294 (Ind.Ct.App. 2008)
We successfully defended a preliminary injunction entered against our client’s competitor in a case where the Indiana Court of Appeals held, as a matter of first impression, that the Indiana Uniform Trade Secrets Act does not preempt the civil remedy provision of Indiana’s RICO statute.
Ogle v. East Allen County Schools, 879 N.E.2d 614 (Ind.Ct.App. 2008)
We successfully defended summary judgment granted to our client, an employee group benefit plan, on an employee’s claims of breach of contract and bad faith.
Huntington v. Riggs, 862 N.E.2d 1263 (Ind.Ct.App. 2007)
We successfully represented a landowner in a dispute with a neighboring landowner in a case where the Indiana Court of Appeals reaffirmed that the doctrine of title by acquiescence is a viable alternative theory to adverse possession.
Gatto v. St. Richard’s School, 774 N.E.2d 914 (Ind.Ct.App. 2002)
Adopting the common interest qualified privilege to defamation actions and applying it to communications between schools and parents.
Kentucky Court of Appeals
Divita v. Ziegler, 2007 WL 29390, 35 Media L. Rep. 1225 (Ky. App. Jan. 05, 2007)
We successfully represented a television station in an appeal from a defense verdict in a defamation case involving statements made by a radio personality concerning a television personality, who was deemed to be a public figure. We successfully obtained an affirmance of the favorable trial court decision in a case addressing several questions of first impression under state law, including the scope of liability of media employers under negligent supervision theories for allegedly defamatory statements made by on-air personalities.
Cincinnati Bell Telephone Company v. Kentucky Public Service Commission, 223 S.W.3d 829 (Ky. App. 2007)
We represented a telephone company on appeal, and obtained a 3-0 reversal of the Circuit Court order affirming an order of the Kentucky Public Service Commission. The Commission order required telephone utilities to pay refunds of certain rates collected following a change in federal regulatory policy, based on the Commission’s determination that the utilities were on notice that the state Commission had a policy to follow changes in federal regulatory policy and the utilities therefore should have unilaterally adjusted their own rates following the change in federal policy. We successfully argued that the Commission’s order was precluded by the filed rate doctrine and the prohibition on retroactive rate-making, and obtained a published opinion that is already regarded as one of the seminal Kentucky decisions concerning the filed rate doctrine.
Tennessee Court of Appeals
Saturn & Mazer Title Services, Inc. v. AmSouth Bank, 64 UCC Rep.Serv.2d 879 (Tenn. Ct. App. 2007)
In this case of first impression, we obtained a reversal of a money damages award against AmSouth Bank based on the UCC rules regarding payment of checks with forged endorsements.
Supreme Court of Ohio
Ignazio v. Clear Channel Communications, 113 Ohio St.3d 276, 865 N.E.2d 18 (Ohio 2007)
The court of appeals had held that Clear Channel’s employment arbitration agreement was unenforceable because of an objectionable provision. We successfully convinced the Ohio Supreme Court to accept this appeal to establish statewide standards for the severance of unenforceable contractual provisions, and then convinced the Supreme Court to reverse the court of appeals. Adopting our proposed test for severability, the Supreme Court held that the unlawful provision of the arbitration agreement was severable and the remainder of the agreement enforceable.
Princeton City School District Board of Education v. Zaino (2002), 94 Ohio St.3d 66, 760 N.E.2d 275
On behalf of appellee Duke Realty Limited Partnership and amicus curiae West Chester Township, we argued that the Supreme Court should uphold the Township’s implementation of a tax increment financing plan to encourage further development within the community. The Supreme Court agreed, unanimously affirming the decision by the Board of Tax Appeals.
Ohio Courts of Appeals
Fairfax Homes v. Blue Belle, Inc. (2006), 2006-Ohio-2261
This case was a breach of contract case involving real estate that arose over the lack of contract terms. We won a reversal in the Fifth District because the Statute of Frauds required a writing as to the essential terms of the real estate contract, but the missing contract terms were not essential to the completion of the transaction.
Hughes v. Bethesda Hospital, Inc. (2005), 2005-Ohio-2451
This case was a medical malpractice case where a motion for summary judgment had succeeded because no expert testimony was presented to demonstrate the medical malpractice, despite ample evidence to do so. We won an affirmance from the First District, requiring expert evidence to support a medical malpractice claim at the stage where a court is rendering a decision.
Carew v. Seeley (2005), 2005-Ohio-5721
This case was whether a contract dispute was arbitrable. We won an affirmance in the First District that the contract language did not make the case arbitrable for purposes of this case (although other potential disputes would be arbitrable depending on the circumstances and nature of the dispute).
Fite v. University Hospital (2004), 2004-Ohio-1266
This case was a wrongful death and medical malpractice action against hospital that released a suicidal individual who subsequently committed suicide. We won an affirmance in the First District by pointing out the procedural impossibility of an appellate review when the appellate record was less than complete.
Beam v. Division of Mines and Reclamation (2001), 93 Ohio St. 3d 1433, 755 N.E.2d 355
We successfully urged the Supreme Court to decline jurisdiction of this case of first impression relating to awards of attorneys’ fees against the State of Ohio.
Guarantee Title & Trust Co. v. Hines (2004), 2004-Ohio-3429
This case was a quiet title action against a bank that held a note secured by the subject property. We won an affirmance in the Twelfth District because we showed that the bank could potentially receive funds through foreclosure and sale of the property if the higher priority creditors were properly paid, therefore, attempts to show that higher priority creditors would receive all of the proceeds were ineffective to remove the property lien and allow the creditors to circumvent the foreclosure.
We are proud to count among our ranks several former clerks for notable appellate court judges, as well as attorneys that are distinguished members of the American Academy of Appellate Lawyers. Academy membership is by invitation only and limited to 500 members in the United States. To be eligible, an attorney must have an accomplished record in major appellate cases dating back 15 years or more.
It is also of special significance that many of our appellate advocates wrote the books and rules — literally. This includes:
- Authors of Kentucky Appellate Practice (Thomson/West 2006).
- Co-author of Ohio Appellate Practice, five editions (Thomson/West 2004-2008).
- Editor-in-chief of the Sixth Circuit Practice Manual (Anderson 2006).
- Co-drafters of the Indiana Rules of Appellate Procedure (2000, 2002, 2008).
- Contributors to the Indiana Appellate Practice Manual (2008).
- Authors of the Indiana “Appellate Law Update” for Res Gestae (2002-present).
- Authors of the “Indiana Appellate Practice Column” in the Appellate Advocate (2002-present).
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