Appellate

Frost Brown Todd's Appellate Practice Group is highly qualified to meet the unique demands of appellate practice. We have handled matters in courts of appeals across the nation, including the United States Supreme Court, and we have vast experience in the appellate courts in our region -- the U.S. Court of Appeals for the Sixth and Seventh Circuits and the state appellate courts of Indiana, Kentucky, Ohio, Tennessee, and West Virginia. We count among us attorneys who clerked for judges of the U.S. Courts of Appeals for the Sixth and Eighth Circuits, the Indiana Supreme Court, Indiana Court of Appeals, Kentucky Supreme Court, and the Ohio Court of Appeals. We are committed to providing appellate advocacy of the highest quality by recognizing the unique aspects of appellate practice and using them to the advantage of our clients.

We Wrote the Book

Actually, we wrote the books (and rules)- literally. Members of our group include the authors of Kentucky Appellate Practice (Thomson/West 2006), the co-author of Ohio Appellate Practice (Thomson/West 2007), and the editor-in-chief of the Sixth Circuit Practice Manual (Anderson 2006) , drafters of the Indiana Rules of Appellate Procedure (2000, 2002, 2008), authors of the Indiana "Appellate Law Update" for Res Gestae (2002-present), and authors of the Indiana Appellate Practice Column in the Appellate Advocate (2002-present).

Our Purpose

Appellate advocacy demands an approach different from trial court advocacy. Appellate lawyers do not have the opportunity to shape the record; they must construct the best arguments possible given a static set of record facts. Appellate lawyers have at most two opportunities to persuade with the written word. They have even less opportunity to persuade the judges orally. And appellate judges, most of whom lack time to review the record or the case law personally, depend on the attorneys to present issues clearly and persuasively. Appellate practice is therefore as specialized as jury trial practice.

All too often, though, appellate advocacy is little more than trial court advocacy the second time around. Most litigators focus exclusively on trial practice -- on developing a case through discovery, narrowing the issues through motion practice, and either negotiating a settlement or persuading a judge or jury to render a favorable decision. An appeal often is an afterthought, with trial-focused litigators assuming that their trial preparation has sufficiently prepared them for appeal, and that all that is required is a rearguing of points already made in the trial court.

The result, too frequently, is appellate advocacy that does no more than rehash stale arguments -- often arguments that failed to convince the trial judge -- without either narrowing or tailoring those arguments to a new audience with a new perspective: a panel of appellate judges. That approach is a disservice to clients, who look to the appellate lawyer to preserve a hard-fought victory or undo a trial court defeat. Appellate advocates therefore must take a fresh look at a case on appeal.

Appellate attorneys must identify the key issues to affirm a favorable judgment or reverse an unfavorable one, frame those issues in the best possible light given the record and the applicable law, and present the issues in a direct and compelling manner. They must use the applicable standards of review to select the arguments to be presented and those to be discarded. They must make it as easy as possible for appellate judges, who lack a trial judge's ability to become familiar with a case as it progresses, to rule in their client's favor. They do this by drawing upon the record, stating the law clearly and correctly (or, when necessary, urging a change in the law), and arguing plainly, without excessive rhetoric. Appellate advocates also must take a fresh look at settlement prospects in the post-judgment stage. In any appeal, especially if the verdict or trial court decision was adverse, a seasoned appellate practitioner, particularly one unencumbered by having participated in the trial, can offer an analysis of the settlement value of the case and the likely length and outcome of the appellate process. We are committed to meeting these special demands of appellate practice and providing appellate advocacy of the highest quality.

Representative Matters

Our Group has handled appeals in courts across the country. Of course, we have particularly strong experience in the courts of appeals within our region. Click here to read about some of our recent experience.