The Risk Manager, Winter 2008

By Retired Judge Stan Billingsley

Editor’s Note: This article is one of a series that LawReader.com has agreed to provide for Lawyers Mutual’s newsletter as a bar service. LawReader.com provides Internet legal research service specializing in Kentucky law. For more about LawReader go to www.LawReader.com.

A recent unpublished Kentucky Court of Appeals decision dismissed an appeal from a ruling by an Administrative Law Judge because of the failure of the appellant to clearly state what issues were being appealed. The appellant filed a dozen exceptions to the ALJ's findings, but only in general terms. The following examples show just how general they were:

  • The findings of fact are defective in that they are without the support of substantial evidence on the whole record.
  • The ALJ’s conclusions of law do not accurately reflect the applicable legal principles involved.
  • The action of the Cabinet was in excess of its statutory authority.
  • The appellant was deprived of its right to due process.
  • The findings of fact, conclusions of law and recommended decision defy reasonable business practice standards.
  • The decision is in violation of federal and state constitutional, statutory and regulatory provisions.
  • The decision is arbitrary, capricious and represents an abuse of discretion.

The Court found this approach to preserving error so disturbing that it went out of its way to raise the issue of non-specific exceptions in appeals.In dismissing the appeal the Court found that these exceptions were of such a general nature that they failed to inform the Court of any specific issues being raised by the appellant and were of little benefit to anyone. In the decision the Court cited other instances when appellants had appeals dismissed over this same issue: “[I]n administrative law cases, a party who disagrees with the hearing officer's recommended order must bring that disagreement to the attention of the agency head or be precluded from raising the issue in court.” Herndon v. Herndon, 139 S.W.3d 822, 825 (Ky. 2004); and Rapier v. Philpot, 130 S.W.3d 560, 563 (Ky. 2004).

The federal courts have likewise required specific facts to be cited in exceptions to ALJ reports. In Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991) the Court wrote: “A general objection to the entirety of the magistrate's report has the same effects as would a failure to object.” …. “[O]bjection stating only ‘I object’ preserves no issue for review.” …. “A judge should not have to guess what arguments an objecting party depends on when reviewing a magistrate's report.”

To avoid a claim of malpractice, an appellant filing exceptions to an ALJ’s report should, as in all other appeals, cite specific facts and circumstances within the record that support general claims. The failure to cite the record and identify the specific errors risks a dismissal of the appeal.

Editor’s Note: If you would like to further consider risk managing appellate practice read the KBA Bench & Bar article “Appealing Ethics” available on our web site – go to the Resources/Bench &Bar Articles page. The article includes the following Appellate Practice Risk Management Guidelines:

  1. Client Screening: Declining to represent difficult clients is one of the best ways to avoid a malpractice claim. As part of the client screening process consider whether the potential client will be difficult to work with on appeal. Remember that filing an appeal means the case was lost in whole or part at the trial level. Client relations are often strained from this point forward with accusations of malpractice not infrequent.
  2. Matter Screening: Screen a new matter to assure firm competence in both applicable substantive law and appellate practice prior to accepting the representation. Accepting close or novel cases requires trial advocacy skills and appellate skills of record review, brief writing, and oral argument. In some cases it may be appropriate to represent the client at trial, but refer any appeal to an experienced appellate lawyer.
  3. Conflicts of Interest: Include in the firm’s conflict check system positional conflicts of interest. Periodically check for positional conflicts as a case progresses to appeal.
  4. Letters of Engagement: Cover appeals in letters of engagement so there is no doubt whether there is a duty to represent a client on appeal. Fees for appellate representation should be specifically addressed. Remember that RPC 1.5(c) Fees requires that fees for appeals be covered in writing in contingency fee representations.
  5. Time Limits: Most appellate malpractice claims arise because of late post-judgment motions, late notices of appeal, and other missed appellate deadlines. Unlike trial practice where missing the statute of limitations is the major time limit cause of malpractice claims, appellate practice involves numerous deadlines any one of which can be fatal to the appeal. The appellate lawyer must be expert in state and federal time limit rules on post-judgment motions, notice of appeal fillings, brief filings, exceptions to filing requirements, and whether an extension of time or motion for enlargement tolls other appellate deadlines. There is no substitute for knowing what you are doing.
  6. Client Communication: It is the client’s decision whether to appeal – be sure the client understands this. Be clear on what the client wants appealed so there is no later accusation that the lawyer omitted appellate issues. The short time limits on post-trial motions and notices of appeal require a prompt decision by the client. Document the file.
  7. Preparation: Procrastination is the appellate lawyer’s greatest enemy. Last minute preparation leads to inadequate review of the record and a hasty and poorly researched brief. A five or six page appellate brief with sparse legal authority in a complex appeal screams procrastination or incompetence and raises the question of malpractice. There is no substitute for doing your homework in appellate practice.
  8. Withdrawal: The most likely reason for an appellate lawyer to withdraw is because the lawyer believes an appeal lacks merit. Other reasons include strained client relations, lack of appellate practice experience, and when the client discharges the lawyer. The withdrawing or discharged lawyer must take action to protect the client's interest. These steps include giving
    9. reasonable notice of withdrawal, allowing time for retention of another lawyer, and promptly returning papers and property to which the client is entitled. The short time limits on post-trial motions and notices of appeal mandate that the withdrawing lawyer move expeditiously. The client should be urged to retain another lawyer immediately. Avoid the accusation that delay in making a decision to withdraw and complying with withdrawal duties caused the client to miss appeal deadlines.