Howard J. Bashman's appellate columns, etc.

Attempting To Preserve 104 Issues For Appeal Results
In The Preservation Of None

By Howard J. Bashman
Monday, January 10, 2005
Preserving issues in the trial court for purposes of appeal is of utmost importance, but a recent decision from the Superior Court of Pennsylvania establishes that preserving an inordinate number of issues can be counterproductive.

The Pennsylvania Rules of Appellate Procedure encourage a trial court, once an appeal has been taken, to order the appellant to file a statement of matters to be complained of on appeal. The statement allows the trial court to determine whether it has sufficiently explained its reasons for the rulings that are being challenged on appeal. And if the trial court finds a sufficient explanation is lacking, the trial court can issue an opinion explaining why it ruled as it did.

An appellant ordered to file a statement of matters to be complained of on appeal must exercise caution to be thorough, because Pennsylvania's appellate courts have ruled that issues omitted from such a statement are waived and will not be considered on appeal. Accordingly, the party taking the appeal will typically err on the side of identifying more issues than that party ultimately ends up raising in its appellate brief.

A highly–regarded appellate judge once observed that claims of error on appeal are like currency -- both lose value due to over–issuance. Experienced appellate lawyers and judges strongly recommend that appellate briefs should present no more than four issues, and hopefully fewer. A scattershot approach to appellate advocacy, evidenced by a multiplicity of issues, is viewed as demonstrating a lack of thought, a lack of confidence, or both.

On very rare occasion, I have seen instances where parties on appeal have sought to raise ten or more issues, but never to good effect. Yet it wasn't until December 2004 that I heard of the ingenious attempt to lay the groundwork for raising 104 issues on appeal. Given the page limitations applicable to appellate briefs in Pennsylvania state courts, someone seeking to brief 104 issues on appeal would need to limit the argument of each issue to less than one page of text.

I wish I could report to you that the story of the appellants who sought to raise 104 issues on appeal had a happy ending -- that the appellate court found issues 17, 48, and 73 to have merit, and therefore the judgment appealed from was reversed. But good things rarely happen to parties that raise far too many issues on appeal, and the result of this particular appeal has so far proved to be no different.

But before jumping ahead to the result, let's examine what went wrong and what might have been. The case in which the losing parties sought to preserve 104 issues for appeal involved, conveniently enough, a dispute between lawyers over the division of an attorneys' fee arising from a case that the plaintiff lawyer had referred to the defendants, a lawyer and law firm. The underlying referred case had settled for more than $4 million, and the attorneys' fee was thirty percent of that amount.

The referring attorney claimed that she was owed one third of the total attorneys' fee, but the law firm to which she had referred the matter refused to pay any referral fee. So the referring lawyer did what lawyers tend to do -- she sued the lawyer and law firm that received the case from her. And the lawyer's lawsuit sought both compensatory and punitive damages.

The case was tried to a jury, which ruled in favor of the referring attorney but awarded to her only half of the compensatory damages that she had sought. As for punitive damages, the jury awarded none. The plaintiff thereafter filed post–trial motions seeking to have the compensatory damages increased to the full amount she had sought plus the addition of punitive damages. Surprisingly, the trial court agreed in both respects, increasing the compensatory damages award to one–third of the overall attorneys' fee and awarding some $645,000 in punitive damages to boot.

The trial court's decisions to double the jury's compensatory damages award and to add a substantial amount of punitive damages despite the jury's decision to award none would presumably be vulnerable to challenge on appeal. Perhaps thinking along those very lines, the defendants appealed from the trial court's judgment to the Superior Court of Pennsylvania.

After receiving notice of the appeals, the trial court directed the defendants to file the requisite statements of matters to be complained of on appeal. And this is where the train jumped off the proverbial tracks. One defendant's statement of matters to be complained of on appeal raised 55 issues, while the other defendant's raised 49, for a whopping combined total of 104, many of which contained sub–issues.

The trial court, to say the least, wasn't pleased by this development, but the trial court nevertheless wrote an 85–page opinion in support of the rulings being challenged on appeal. When it came time to brief the appeal in the Superior Court of Pennsylvania, the defendants exercised a bit more restraint. One defendant's brief raised seven issues, while the other's raised only four. 104 issues had been winnowed down to a mere eleven.

Eleven issues, while unwieldy, was at least not as preposterous a number of issues as 104 had been. Nevertheless, the Superior Court did not look kindly on the statements of matters to be complained of on appeal that the defendants had filed in the trial court. In fact, the Superior Court ruled that defendants, by representing to the trial court that they planned to raise 104 issues on appeal, had failed to preserve even a single issue for appellate review in the Superior Court.

As a result, the Superior Court affirmed the trial court's increase in compensatory damages and award of punitive damages in favor of the referring attorney. Unless overturned, the Superior Court's ruling in Kanter v. Epstein will long be remembered in the annals of Pennsylvania appellate lore.

Of course, it remains to be seen if seeking to preserve 50 issues, 25, or 15 in a statement of matters to be complained of on appeal will be deemed to cross over into the realm of the preposterous. I am confident that preserving four or fewer issues won't trigger the waiver rule established in Kanter. And I would hope that seeking to preserve even as many as a dozen issues should continue to be permitted.

If there is a single lesson to be learned from Kanter, it is the importance of involving an experienced appellate lawyer as early as possible when a case is heading for appeal. I doubt that an experienced appellate lawyer would have recommended seeking to preserve anywhere near 50 issues for appeal, knowing that only a handful of those could actually be advanced in the brief on appeal.

The defendants probably saved a few dollars by not having an experienced appellate lawyer involved in deciding how many issues to raise in their statements of matters to be raised on appeal. And all it cost the defendants was more than $750,000 in damages plus a scathing opinion from the Superior Court of Pennsylvania.

This article is reprinted with permission from the January 10, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.

Striking Down the Solomon Amendment on Military Recruiting: A Hollow Victory at the Expense of Our Military

By Howard J. Bashman
Friday, January 7, 2005
The Philadelphia-based U.S. Court of Appeals for the Third Circuit has halted enforcement of the federal statute known as the Solomon Amendment. The statute requires colleges and universities that receive money from various federal agencies to provide military recruiters the same access to students that other on-campus recruiters receive.

If the Third Circuit's ruling stands, educational institutions will no longer be at risk of losing federal support if they bar military recruiters from their campuses. Within days of the court's decision, Harvard Law School announced that military recruiters were no longer welcome.

The Solomon Amendment litigation was conceived as a rather ingenious end-run challenge to a different federal statute that requires the military, when hiring, to discriminate on the basis of sexual orientation. Various direct legal challenges to the military's so-called "don't ask, don't tell" policy have thus far all ended in failure. In 1993 President Clinton signed into law the federal statute that requires the military to enforce "don't ask, don't tell" and allows the armed forces to discriminate on the basis of sexual orientation.

The by-laws of the Association of American Law Schools, to which 166 of the 189 law schools accredited by the American Bar Association belong, require member law schools to exclude from recruiting on their campuses any employer that discriminates in hiring based on, among other things, sexual orientation. Thus, but for the Solomon Amendment, nearly 88 percent of the nation's ABA-accredited law schools would, in following those by-laws, ban the military from recruiting on their campuses and could do so without risking the loss of federal support.

Employers other than the military, of course, are free to adopt and enforce policies that prohibit discrimination based on sexual orientation. The military, however, cannot adopt such a policy, because only the U.S. Congress or the courts have the power to remove the "don't ask, don't tell" law from the books.

The purpose of the litigation seeking to declare the Solomon Amendment invalid, it is quite clear, is to make it more costly for the "don't ask, don't tell" policy to persist. But who, in the final analysis, pays the price for the litigation's success in striking down the amendment?

Not the law schools or the universities with which they are affiliated, obviously, because they no longer face the loss of federal funds when they deny equal access to military recruiters. Rather, the significant price to be paid will be borne by the men and women who serve in the military, the leaders of the military, and our nation as a whole.

I filed a friend-of-the-court brief in the Third Circuit on behalf of several law-student veterans' groups that opposed invalidation of the Solomon Amendment. Those students recognized that, but for the amendment, it would be much more difficult for law students to learn about job opportunities available to lawyers in the military. My clients were also concerned that the military's exclusion from campus recruitment might render students involved with the military "guilty by association" and thus undercut their ability to participate meaningfully in the classrooms and halls of American law schools.

For its part, the military justifiably has concluded that recruiting on campuses is necessary to attract the best and the brightest people to its ranks. That belief is confirmed by how the marketplace for the most talented law-school graduates operates. Private law firms that seek top-notch recruits from law school recognize that on-campus recruitment is a necessity.

If one accepts that the best and the brightest law students are usually those who become the most accomplished lawyers, the question next becomes, "Why is it important for the military to have such lawyers?" The answer is that not only do military lawyers serve as advisers to servicemen and servicewomen on matters involving will preparation, bankruptcy, and family-law issues, but those lawyers also advise those who run the military on how to comply with the laws of this nation and with applicable international laws. In addition, military lawyers administer the armed forces' own justice system, serving as prosecutors, defense lawyers, and judges. And military lawyers even defend accused enemy combatants.

Whether one is most concerned about providing members of the military with the best possible advice or making sure that innocent civilians of a foreign nation are not wrongfully targeted in combat, the need for talented lawyers in the military is incontrovertible. The ongoing war on terror and active combat operations in Iraq and Afghanistan only heighten the military's need for talented lawyers while increasing the challenges that military recruiters face.

The Third Circuit, in striking down the Solomon Amendment, ruled that the law violates the First Amendment rights of law schools by requiring them to disseminate the military's pro-recruitment message notwithstanding the law schools' stated opposition to employers that discriminate based on sexual orientation. In essence, the ruling depends on the so-called "unconstitutional conditions" doctrine, under which "the government may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially his interest in freedom of speech."

In the aftermath of the ruling, the Third Circuit's decision has been the subject of pervasive, and quite persuasive, criticism from liberal and conservative commentators alike. Because the Third Circuit has invalidated as unconstitutional a federal law that the military views as necessary to recruit into its ranks sufficiently talented lawyers, the case is one that the U.S. Supreme Court will probably accept for review. And the outcome before that court is likely to be a reversal of the Third Circuit's ruling, which would again force law schools and universities to choose between allowing military recruitment on their campuses or forfeiting federal support.

As Ruggero J. Aldisert, the dissenting judge on the Third Circuit's three-judge panel, explained, the ruling that struck down the Solomon Amendment has a central flaw: the majority's acceptance of the argument that the amendment forces law schools to endorse the military's discriminatory treatment of homosexuals in hiring. Indeed, no reasonable observer could conclude that law schools which allow military recruiting on their campuses to avoid losing federal support are thereby signaling their approval of that military policy. Law students are, after all, not babies. They are quite able to see that, by giving military recruiters a room in which to interview and distributing word that the military will be visiting, a law school is not endorsing discrimination based on sexual orientation.

If there is any communicative aspect to a law school's decision, under the Solomon Amendment, to allow military recruiting on the campus, it is that the penalty--the loss of federal support--outweighs the value the law school and its affiliated university have assigned to exercising their right to exclude such recruiting. Law schools at all times have had the right to ban military recruiters notwithstanding the existence of the Solomon Amendment--the university simply had to pay the price in loss of federal dollars.

Thus, to the extent that the amendment causes a law school to "speak" in any manner, a law school was merely forced to reveal that it viewed the continuation of federal support as more valuable than the evenhanded application of the school's anti-discrimination policy. That "speech"--which demonstrates that the exercise of rights can sometimes come at a cost that may be too great to bear--would seem to teach law students a valuable lesson about how the real world often operates.

Until the Supreme Court has the opportunity to review the Third Circuit's decision declaring the Solomon Amendment unconstitutional, one hopes in this time of war that other law schools will act with more restraint than Harvard Law School has exhibited. For example, Princeton University, which of course does not have a law school but which is located within the geographical boundaries of the Third Circuit, announced after the ruling that it intends to continue to allow military recruiters onto its campus.

It also deserves to be noted that on December 6, in a federal trial court in Boston, 12 lesbian and gay veterans filed a new lawsuit in which they are seeking to invalidate the federal "don't ask, don't tell" statute. If that lawsuit succeeds, presumably law schools and other educational institutions will no longer seek to exclude the military. Also, within the ranks of the military, opposition to the "don't ask, don't tell" policy continues to grow. Such opposition may lessen, however, if the military loses the ability to hire the college and law-school students who are most qualified to press the case against the policy.

After my criticism of the Third Circuit's ruling was quoted in an article published in The New York Times, I received several e-mail messages noting that if I were truly concerned about allowing the military to recruit the best lawyers, then I would favor ending the military's policy of discrimination based on sexual orientation. The individuals who wrote those messages make a persuasive point, but the reality remains that the Third Circuit's ruling in the Solomon Amendment case does not invalidate "don't ask, don't tell."

Law schools have won a hollow and dubious First Amendment victory at the expense of our military. The lesson to be learned here, sadly, is not the one the plaintiffs sought to teach.

Howard J. Bashman is an appellate lawyer in Fort Washington, Pa.

This essay is reprinted with permission from the January 7, 2005 issue of The Chronicle of Higher Education © 2005.