Cozen O'Connor's Appellate Practice Group: Strong And Getting Stronger

Wednesday, October 1, 2008 - 01:00

Editor: Justice Newman, would you tell our readers something about your professional experience?

Newman: I began my career as the first female Assistant District Attorney in Montgomery County, Pa. I then went into private practice and merged with a 35-person boutique firm, which became Astor Weiss & Newman. I was there from 1979 to 1993, when I ran for and won a seat on the Pennsylvania Commonwealth Court. Two years later, I was the first woman elected to a seat on the Pennsylvania Supreme Court, which is, incidentally, the oldest court in the nation, having been established 67 years before the United States Supreme Court. It was a great privilege for me to serve on these two courts.

With respect to joining Cozen O'Connor, I had known Patrick O'Connor for many years, including through our involvement on the governing board of Villanova Law School, and Steve Cozen as well. I had deep admiration for what both accomplished at the firm. It was a very good move for me.

Editor: Would you tell us about your responsibilities at Cozen O'Connor?

Newman: I head the national appellate practice, which handles a range of cases, including everything from product liability cases, to real estate matters, to corporate and insurance work. We hold monthly video and teleconference meetings across the country to consider new appellate practice rules, work on mock appellate court cases, assess the ways in which we can best utilize our experience and personnel in a variety of cases and forums, and train our teams in the writing of appellate briefs and appearing in appellate court - which are very different propositions from trial work.

Just recently, I had an attorney come to me for a mock appellate argument. One member of the court before which he was going to argue had written a dissenting opinion in a case that was on all fours with the attorney's case - and we worked with him to turn that state of affairs into something positive. We discussed stare decisis , being bound by a recent case, and the nuances of what made this case different from the other. This is typical of the type of support I, and our appellate practice, bring to the firm.

Editor: When you are putting together an appellate practice, are there particular characteristics that you look for?

Newman: Many trial lawyers develop into good appellate practitioners because they like the work, and I think just about any good trial lawyer who is called upon to handle a significant volume of appellate work can make the transition. That said, attorneys that are academic, good researchers, methodical, and exacting make particularly good appellate lawyers. The bulk of my work in private practice prior to coming to the bench was at the trial level, and, with the help of good appellate clerks, I developed the requisite mindset for successfully dealing with major appellate cases.

Editor: What distinguishes Cozen O'Connor's practice? Would you share with us some of the recent high profile appeals you have handled?

Newman: In response to your first question, Cozen O'Connor is distinguished by its size and talent. With nearly 500 lawyers in 22 offices across the country and in London and Toronto, we have a real depth of experience. That results in an extraordinarily interesting practice.

Concerning completed appeals, in one of our most significant recent cases, we obtained Second Circuit affirmance of a ruling that the two September 11th attacks on the World Trade Center constituted one, rather than two, occurrences for insurance purposes, saving the insurance company $254 million.

The firm also argued a post-verdict appeal before the Sixth Circuit Court of Appeals involving approximately $60 million in damages. The matter resulted in the reversal of a district court decision and held that damages cannot exceed the principal obligation of the obligor on what the district court had determined to be a surety bond.

With respect to pending appeals, we handled an extremely important suit before the Second Circuit Court of Appeals where insurance companies seek to recover in excess of $5 billion paid to victims of the September 11th terrorist attacks. The suit asserts claims against several foreign states, a number of (ostensible) charities, banks, corporations and individuals alleged to have provided material support to Al Qaeda. The district court dismissed claims against the Kingdom of Saudi Arabia for lack of subject matter under the Foreign Sovereign Immunities Act.

On appeal, we asserted that the district court erred in failing to consider theories of non-immunity advanced as to the Kingdom. This was based on the attributable conduct of several so-called charities, which acted under the rigid control of and direction from the Saudi government. The Second Circuit held against us, ruling that an American citizen - who has been a victim of terrorism by a foreign state, its agencies or instrumentalities - has no redress unless the foreign entity has been designated as a state sponsor of terrorism by the State Department. We believe this is a terribly wrong decision, and we will seek redress from the U.S. Supreme Court. Needless to say, this is one of those appeals that is front-page news.

Editor: At the trial level, when things are not going well, are there things that corporate counsel can do to prepare for an eventual appeal?

Newman: Absolutely. It's important to note that while the up-front costs may be higher than they would otherwise be, the presence of appellate counsel at the trial level very often results in substantial long-term savings. And, one of the benefits of being with a large firm is the ability to be with counsel at the trial level. We have the experience to help counsel identify when to object and the various issues to be preserved for appeal. What's more, our team can provide strategic advice on how to identify, select, hone, refine and present issues, theories and arguments in anticipation of a possible appeal. These are just a few examples of the counsel that our appellate lawyers can provide to clients.

Editor: And the opposite, where you want the decision to stand?

Newman: Precisely the same tact. With the right guidance from experienced appellate counsel, the trial lawyer can object and ensure that the objections are preserved. That type of strategy should inform every courtroom case, and unfortunately, all too often, trial counsel will miss opportunities, which might serve to permit the resulting trial court decision to avoid being appealed.

Editor: Everyone exposed to appellate practice is familiar with the tendency of trial attorneys to include every objection they've made at trial into the appeal. How do you address this in your practice group?

Newman: As a general proposition, appellate courts may not take these appeals under Rule 1925(b), and, if they do, very often the appeal will not succeed. Preparation is the key to a successful appeal. It is particularly helpful for an appellate practice to include retired appellate judges - like Judge James Colins who recently joined the firm from the Commonwealth Court of Pennsylvania - who have a strong sense of what an appellate brief should contain, what should be emphasized (and as few issues as possible, by the way) and what should be ignored in the appeal. Even if an appellant has a couple of good issues in the appeal, the panel is going to be distracted from them if he or she tries to get everything included into the appellate record and argument.

Editor: In your experience in the appellate arena, what elements are critical to arguing a successful appeal?

Newman: Hitting on the important issues (and just those issues), listening to the questions posed by judges or justices hearing the case, and responding adequately (if you don't know the answer, just say so). Other tips for successful oral argument range from identifying time restrictions imposed by the Court and reserving time for rebuttal, to citing favorable decisions that the panel members wrote or joined. The essential thing is to really hone in on the few issues that the judges are likely to be interested in and to have complete command of those issues.

Editor: You have referred to the extensive preparation that goes into a successful appeal. How does a mock trial program, for example, help in getting ready for oral argument?

Newman: The substance of the exercise is very helpful, whether for in-house counsel or outside counsel. When I conduct mock appellate programs, I begin the trial and explain the make-up of the court in which the lawyer will be arguing. After the initial informal session, we proceed into a formal session, where I prepare the lawyer and ask potential questions. This includes evaluating which arguments to press, whether some or all, and which to jettison; assessing the relative viability and strengths of arguments where several grounds for a successful appellate ruling potentially could be presented; formulating new arguments tailored to the particular appellate forum and appellate procedures that you face, and so on. It's truly an educational process allowing the attorney to simulate appellate oral argument in an objective, neutral and confidential setting, helping him/her to practice, improve, and succeed in presentation methods. These calculated exercises can truly turn the tide in your case and offer the silver bullet argument or approach you need.

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