Appellate Practice for Trial Lawyers Seminar Featured in RI Bar Journal

The July/August 2014 edition of the Rhode Island Bar Journal highlights the seminar Appellate Practice for Trial Lawyers that I presented along with Rhode Island Supreme Court Chief Justice Frank J. Williams (Ret.), Lauren Jones, Christopher Bush and Kara Maguire at this year’s Rhode Island Bar Association Annual Meeting.

Image courtesy of Stuart Miles at FreeDigitalPhotos.net

Image courtesy of Stuart Miles at FreeDigitalPhotos.net

As part of my presentation, I offered my top five appellate practice tips based on decisions from the last two Rhode Island Supreme Court terms. They are:

1. It’s Ok To Be Early But You Can Never Be Late.

Notices of appeal must be filed within 20 days of the date of the entry of the judgment, order or decree appealed from. A long line of cases, including one from last term teaches that premature appeals are typically treated as timely.
See http://www.riappeals.com/deadlines/premature-appeals-treated-as-timely/

Even a sympathetic trial justice cannot help you if you have missed the time for appeal. The trial courts may not circumvent the Supreme Court’s rules by enlarging the time for appeal.
See http://www.riappeals.com/untimely-appeal/1-trial-courts-may-circumvent-supreme-courts-exclusive-jurisdiction-enlarge-time-appeal/

2. Failure to Order a Transcript Is Risky Business.

Among the things an appellant must do to perfect an appeal is to order a transcript of such parts of the proceeding that the appellant deems necessary for inclusion in the record. In case after case, including decisions from last term, the Supreme Court has reminded litigants that the failure to order a transcript of the proceedings below is risky business.
See http://www.riappeals.com/transcripts/52/

Occasionally, the transcript will not be necessary and the Supreme Court can address the merits without the transcript.
See http://www.riappeals.com/transcripts/failure-to-order-transcript-not-fatal-to-appeal/

Most often, however, the Supreme Court will hold that the failure to order a transcript is fatal to an appeal.
See http://www.riappeals.com/transcripts/52/

3. It’s Not Your Party.

A party who is not aggrieved by a judgment cannot be qualified as an appellant. The rule is statutory. R.I. Gen. Laws § 9-24-1 provides: “any party aggrieved by a final judgment, decree or order of the Superior Court may, within the time prescribed by applicable rules, appeal to the Supreme Court.” An aggrieved party is one whose interests in the lower court decision are actual and practical, as opposed to merely theoretical.
See http://www.riappeals.com/appealability/1-supreme-court-holds-that-a-party-who-is-not-aggrieved-by-a-judgment-cannot-be-qualified-as-an-appellant/

4. It’s Not Over Until It’s Final.

As a general rule (there are some exceptions), orders entered by the trial court are not appealable until the case has concluded and a final judgment has entered. The rule is designed to promote judicial efficiency and prevent piecemeal adjudication of disputes.
See http://www.riappeals.com/category/final-judgment-rule/

5. Speak Now Or Forever Hold Your Peace.

The raise or waive rule is arguably one of the most important rules of appellate practice. The rule provides that issues that have not been raised or articulated previously at trial are not properly preserved for appellate review.

General objections are insufficient to preserve issues for appellate review. For example, uttering “Objection” without articulating the basis for the objection is insufficient to preserve an issue for appeal. See http://www.riappeals.com/raise-or-waive-rule/4-preliminary-ruling-motion-limine-generally-insufficient-preserve-issue-appeal/

A preliminary ruling on a motion in limine is generally insufficient to preserve an issue for appellate review. A ruling on a motion in limine must be unequivocally definite, otherwise it will not suffice to preserve an evidentiary issue for review. A proper objection on the record at the trial itself is necessary.
See http://www.riappeals.com/raise-or-waive-rule/4-preliminary-ruling-motion-limine-generally-insufficient-preserve-issue-appeal/

(1) MOTION FOR CLASS CERTIFICATION MUST BE TIMELY FILED.

Rule 23(c)(1) of the Rhode Island Superior Court Rules of Civil Procedure governs the timeliness of a motion for class certification in a class action case. The rule provides that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” R.I. Super. Ct. R. 23(c)(1). Looking to federal cases on the issue of timeliness of requests for class certification, the Rhode Island Supreme Court has long recognized that each motion for certification must be reviewed on the facts and circumstances of the particular case and there is no set deadline by which the court must act. Zarrella v. Minnesota Mutual Life Insurance, Co., 824 A.2d 1249, 1263 n.16 (R.I. 2003).

This term, the Rhode Island Supreme Court reminded litigants that it has not adopted the 2003 amendments to Federal Rule 23 or its more liberal timeliness requirement. Long v. Dell, Inc., No. 2012-248-Appeal at 11-12. Compare R.I. Super. R. Civ. P. 23(c)(1) (“As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.”) with Fed. R. Civ. P. 23(c)(1)(A) (“At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.”).

(2) PLAINTIFF CLASS MUST BE TREATED AS CERTIFIED FOR PURPOSES OF A PRECERTIFICATION MOTION FOR SUMMARY JUDGMENT.

The Rhode Island Supreme Court held this term that when a defendant files a motion for summary judgment before the plaintiff class is certified, the court must treat the case as though it were certified as a class action. Long v. Dell, Inc., No. 2012-248-Appeal at 10-11. Such a rule is consistent with the Court’s summary judgment jurisprudence, which requires the court to view the evidence in the light most favorable to the non-moving party. Id.   By treating a case as a certified class action at the motion for summary judgment stage, the court may consider the injury or damages sustained by the class, and is not restricted to considering only the injury or damages of the named plaintiff. Id. at 11 (noting that “if the class is treated as certified, for purposes of viewing the evidence in the light most favorable to the nonmoving party on summary judgment, an inference of class-wide injury should be drawn when competent evidence permits”).

(3) AN INJUNCTION IS NOT A CAUSE OF ACTION.

In Long, the Rhode Island Supreme Court for the first time made clear that “[a]n injunction is a remedy, not a cause of action.” Long v. Dell, Inc., No. 12-248-Appeal at 23-24 (holding that the Superior Court justice properly dismissed the plaintiff’s request for injunctive relief). In so holding, the Court recognized authority from other jurisdictions holding that injunctive relief is not a cause of action. See Thompson v. JPMorgan Chase Bank, N.A., No. 13-2230, 2014 WL 1586992, at *1 n.1 (6th Cir. Apr. 22, 2014); Koufos v. U.S. Bank, N.A., 939 F. Supp. 2d 40, 46 (D. Mass. 2013)). The Supreme Court’s ruling is consistent with the Superior Court’s recognition in State v. Lead Ind. Assn., Inc. that injunctive relief is not a standalone cause of action. See State v. Lead Ind. Assn., Inc., C.A. No. 99-5226, 2001 R.I. Super. LEXIS 37 (R.I. Super. Ct. Apr. 2, 2001) (concluding that “absent controlling case law establishing that a request for injunctive relief constitutes an independent cause of action, injunctive relief is a remedy and, can not, in itself, be recognized as a substantive claim.”).

(4) MOTIONS TO STRIKE REVIEWED FOR ABUSE OF DISCRETION.

Addressing another issue of first impression, the Rhode Island Supreme Court held this term that a trial justice’s decision on a motion to strike brought pursuant to Rule 12(f) of the Rhode Island Superior Court Rules of Civil Procedure is reviewed for abuse of discretion. Long v. Dell, Inc., No. 2012-248-Appeal at 24-25. In so holding, the Court reviewed case law interpreting the substantially similar Rule 12(f) of the Federal Rules of Civil Procedure and concluded that because a the trial court enjoys liberal discretion when ruling on a motion to strike, the trial justice’s decision should be reviewed only for an abuse of discretion. Id.

(5) DID YOU KNOW?

To prove that a trade practice is deceptive under the Deceptive Trade Practices Act, R.I. Gen. Laws § 6-13.1-1 et seq., a plaintiff must demonstrate three elements “[1] a representation, omission, or practice, that [2] is likely to mislead consumers acting reasonably under the circumstances, and [3], the representation, omission, or practice is material.” Long v. Dell, Inc., No. 2012-248-Appeal at 21 (adopting the FTC’s interpretation of § 5(a) of the Federal Trade Commission Act).

RWU Law Review Publishes 2013 Survey of Rhode Island Law

In its 19th edition, the Roger Williams University Law Review has published its 2013 Survey of Rhode Island law, providing comprehensive review and analysis of 20 recent Rhode Island Supreme Court decisions. The law review’s annual survey is a valuable read for Rhode Island practitioners.

Also in that edition is an article I co-authored with Michael W. Field, Esq. titled “Roger Williams University School of Law: The First Twenty Years – The Rise of Rhode Island’s Law School,” which highlights the law school’s many accomplishments during its first two decades.

Appellate Practice for Trial Lawyers

If you plan to be at today’s Rhode Island Bar Association Annual Meeting, please join us at 1:30 p.m. in Ballroom C/D for a presentation on Appellate Practice for Trial Lawyers. You will hear my top five appellate practice tips based on decisions from the last two Rhode Island Supreme Court terms, as well as presentations from Rhode Island Supreme Court Chief Justice Frank J. Williams (Ret.), Lauren Jones, Christopher Bush and Kara Maguire. I hope to see you there!

Court Management of High Profile Civil and Criminal Trials and Appeals

On June 7, 2014, I had the privilege of presenting at the American College of Trial Lawyers’ New England Regional Meeting, along with Retired Rhode Island Supreme Court Chief Justice Frank J. Williams, on the Court’s Management of High Profile Civil and Criminal Cases.  Our presentation highlighted the trial court’s management of high profile cases through the lens of the Block Island rape case of the late 1990s, which commonly was known as the Yellow Kittens Case and the appellate court’s management of high profile cases through the lens of the Lead Paint case, which came before the Rhode Island Supreme Court in 2008 after the longest civil trial in the state’s history.

(1) NOTICES OF APPEAL MUST BE FILED WITHIN 20 DAYS.

As a general matter, a notice of appeal must be filed within 20 days of “the date of the entry of the judgment, order, or decree appealed from.”  R.I. Sup. Ct. R. App. P. 4(a).  The notice must be filed with the trial court’s clerk’s office, not the Supreme Court’s clerk’s office.  Id.  The form for filing a notice of appeal may be found in the trial court’s clerk’s office.  If there is information that does not fit within the allocated space on the form, it is common practice to attach an addendum to the notice form.  See Miller v. Metropolitan Property and Casualty Ins. Co., No. 2013-63-Appeal at 3 (party attached an exhibit to its notice of appeal identifying additional parties).