Apologies for the light blogging recently. I’ve been tied up with other pursuits–which, as its turns out, may inure to your benefit:
Last week, I spent some of my (increasingly limited) nonbillable time on a webinar for Virginia CLE called “Blogging 101: Legal, Practical, Ethical, and Evidentiary Issues for Lawyers and Clients.”
I learned that the webinar is a medium that disfavors my
limited unique talents. Direct engagement with the audience is minimal; you spend most of the time talking at a phone, with no opportunity to read body language or facial expressions, and limited opportunity to field questions. Worse, no one on the phone can appreciate my bowtie–is it ironic, or am I just that preppy? Also, it didn’t help that the other presenters were very good. If you would like hear me stumble and stutter through 30 minutes trying to explain what a blog is, the CLE will be rebroadcast on May 5.
(Potential drinking game: do a shot every time I lose track of the slides.)
More to the point, I devoted a good chunk of last week to working on a brief for the ABA Appellate Practice Institute in Chicago next month. I am reliably informed that this is the nation’s premier appellate CLE; I understand that it incorporates lectures, demonstrations, a moot court, and a critique of each participant’s brief. I was working on the latter project.
One of the issues to be addressed in the brief is the so-called “finality trap” recognized by the majority of federal circuits: if the recipient of an adverse interlocutory ruling voluntary dismisses the remainder of her claims without prejudice, she (probably) cannot then appeal. The appellate court (probably) will lack jurisdiction, because there is no final order. Further, courts generally frown on attempts to manufacture appellate jurisdiction and end-run the trial court’s gatekeeping function in connection with interlocutory appeals.
An example makes this easier to understand (and much scarier): Say you represent a plaintiff with five claims. The district court enters summary judgment in favor of the defendant on four of those claims, effectively gutting your case. In order to appeal, you voluntarily dismiss the remaining claim, which kept you tethered to the trial court.
And now you’re out of court.
The worst part is, it’s tough to predict the rule’s application even if you know what circuit you’re in; inter- and intra-circuit splits, coupled with a myriad of ad-hoc exceptions designed to temper the harsh effect of the rule, render it very plastic. But–at least according to the Seventh Circuit–the trend appears to be in the direction of strict application.
(Potential drinking game: do a shot every time you find inconsistent answers to exactly the same finality-trap question in the same circuit.)
Here’s the best advice* I can give: if at all possible, stick with certification under Rule 54(b) (partial final judgment) or 28 U.S.C. 1292 (interlocutory appeal), and steer clear of trying to force jurisdiction on the appellate court.
Until digging into this rule for the ABA exercise, I did not appreciate its permutations and exceptions. Fascinating stuff. Barry Pickens has done a terrific series of articles on the issue; I differ with him on some of the details, but I highly recommend checking his work if you ever confront this situation. Also, the Mayer Brown treatise on Federal Appellate Practice and Moore’s Federal Practice offer some helpful treatment of the issue.
*This is not legal advice. It is an abstract discussion of a general topic. I am not your lawyer. I don’t give legal advice out for free, or to strangers, or on a blog. If I did, you would be crazy to take it.