motion practice in district court.
Additional Considerations. Another
consideration is the desirability of the
precedent that will be created on appeal.
An unfavorable state district court judgment has no precedential value. Thus, if
there are bad facts that could create unfavorable precedent, the insurer might
choose not to appeal, if it does not have
to, or might seriously pursue settlement.
Moreover, if the insurer has the option
of appealing, consider whether filing an
appeal might favorably affect settlement
The Appellate Process
Requirements. Once the decision to
appeal is made, there are specific steps
counsel must ensure are taken. Most important is to ensure that a notice of appeal is timely filed. Courts require strict
compliance with the deadline for filing an
appeal, which can be short.
Appellate Brief. The primary way parties on appeal make their arguments is
through briefs. Each court has its own
formatting requirements, which counsel
must follow. Formatting non-compliance
reflects poorly on a party.
It is also necessary at the briefing stage
to frame the issues and prioritize them.
Judges expect the most important issues
to come first, not last. And it is important
to identify the correct standard of review
for each issue. If the standard of review is
favorable to you, counsel should emphasize it. Repeatedly.
Oral Argument. Oral argument might
be optional. Consider whether counsel
should request it. There might be nuances
that paper cannot convey. But preparing
and appearing for oral argument is an investment of time and money; determine
if it is worth it.
The possibility of an appeal should influence each stage of a claim. By keeping
the appellate stage in mind, insurers can
select defense counsel suitable for the
claim, confirm with counsel that a district
court win is not erased on appeal, and on
the flipside, increase the chances that a
district court’s error is reversed.
*In limine — A motion made at the start of
a trial requesting that certain evidence not
be introduced in trial.
Bradly Jones, J.D., defends professionals
in Minnesota and surrounding states and
litigates insurance coverage issues through-
out the country. He is a partner and member
of Meagher & Geer, P.L.L.P.’s management
committee. Jones has been active in the
ABA’s Tort Trial and Insurance Practice Sec-
tion, where he has chaired the professional
liability and other committees. He has been
recognized by his peers as a Best Lawyer
and as a Super Lawyer.
Anthony Alt, J.D., is a lawyer in Meagher
& Geer, P.L.L.P.’s insurance coverage and
professional liability practice groups, and
has been recognized as a Rising Star by
Super Lawyers. He advises claim handlers
on matters involving all different types of
insurance, and has litigated coverage matters throughout the country.
Amset engineers investigate, analyze, and resolve the
complexities of loss with exacting detail — assuring
trusted results with every claim.
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| fire/explosion origin & cause | vehicle fire investigation |
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