Lamson, Dugan and Murray, LLP, Attorneys at Law

Thinking of Suing Your Client for Unpaid Fees? Think Twice.

Posted in Ethics, Litigation Tips

We’ve all been there. Long days.  Late nights. Slogging away for the benefit of your client. Then, when you send the bill to be paid for your time, nothing happens. Days, weeks and months go by, to no avail.  Your follow up letters, emails and phone calls fare no better.  The time has come to file suit to collect.

Or has it?

If you are contemplating filing an action to recover unpaid attorney fees, think twice. What may seem to you like a fairly straightforward transaction can quickly turn against you, and morph from a simple collection case into a nightmare.

How so?

First, clients don’t like to get sued – let alone by their attorneys.  It makes them angry; and angry people sometimes lash out.  For your client, this can take any number of forms, including a complaint to Counsel for Discipline, a negative online complaint, or negative social media posts.

Second, by initiating a lawsuit, you are providing an easy vehicle for your client to countersue you for malpractice.  According to the American Bar Association, an estimated 2/3 of all legal malpractice claims come about as counterclaims to suits for fees.  Suddenly, the case is no longer about how much time you spent on the case multiplied by your hourly rate. Instead, every action you took in the case could be placed under a microscope and dissected by opposing counsel.

Third, regardless of the merits of a malpractice claim, the fact that you have been sued for malpractice will likely have to be disclosed on your next malpractice insurance application. Guess what effect that could have on your rates?

Finally, if your case involves one where the court has direct oversight over your fees, or where recovering fees requires you to follow a strict procedural process, make sure you have fully complied with the procedures before filing an application for fees. This is particularly true if a dispute has arisen between you and your client. Not only will the court scrutinize your fee application, but so too will the client.  If you have not followed the proper protocol, the court denying your application may be the least of your problems.  It could also sanction you for your noncompliance, or require you to disgorge the fees you’ve already been paid.

Tips for Fee Disputes

Does this mean an attorney should never sue for unpaid legal fees?  Of course not. But here are a few tips to avoid problems in the future.

  1. Avoid the problem altogether by getting an appropriate retainer from the client, and have the client replenish the retainer as needed.  If the client cannot afford your retainer, chances are she cannot afford your services.
  2. Bill at regular intervals. Waiting to bill until the completion of the matter can invite problems. Consider, for example, the recent Nebraska Court of Appeals decision in Crossman & Hosford v. Harbison, 25 Neb. App. 849.  The client alleged the attorney waited years to bill her, and then experienced a bad case of sticker shock when she finally got the bill.
  3. Put your fee agreement in writing.
  4. Make sure the rewards will outweigh the risks and headaches before filing suit. If you have followed steps 1 and 2 above, the amount at issue should be fairly modest, and may not be worth your time or the headache.
  5. Review the Nebraska Rules of Professional Conduct the before you file suit, paying special attention to Rule 1.5.
  6. Consider using the Nebraska State Bar Association’s Legal Fee Arbitration Program to resolve the fee dispute with your client.  You can find out more information about it here.

Nebraska Court of Appeals Slogs Its Way Through the Jurisdictional Bog

Posted in Appellate Work

Almost two years ago I wrote about the “swamp” of appellate jurisdiction in family law cases.  Unfortunately, the statutes have gone unchanged, and so the appellate courts continue to slog their way through the swamp, trying to explain why one order by the court is not final and another one is.  It’s a complicated dance.

Just yesterday, in In re Interest of Jaydon W. & Ethan W., 25 Neb. App. 562, – – N.W.2d — (February 20, 2018), the Court of Appeals put on its dancing shoes and did the dance once more.  That case involved a divorced father whose children had been removed from their mother and sought custody of his children. The trial court decided that because the father had been absent for two years (in part because of a protective order that had been entered against him that forbade him from having contact with children), he had forfeited his right to custody.

Before the Court of Appeals could reach the merits, it first had to establish whether the trial court’s order was “final” for appeal purposes.  Specifically, the Court had to decide whether the denying the father’s April 2017custody motion was a final order, or whether it was simply a continuation of the trial court’s order denying a similar motion filed back in January 2016 (and also denied). As the Court explained, “A review order does not affect a parent’s substantial right if the court adopts a case plan or permanency plan that is almost identical to the plan that the court adopted in a previous disposition or review order. Thus, a dispositional order which merely continues a previous determination is not an appealable order.” 25 Neb. App. at 569.

As to the denial of the father’s April 2017 motion, the Court concluded it was not merely a continuation of the prior denial. Between the time the trial court ruled on the January 2016 motion, and the filing of the April 2017 custody motion, the facts had changed. The father had moved to where the children had lived with their mother, had been exercising visitation rights (including overnights), had completed a psychological evaluation and parenting risk assessment, and was gradually “transitioning to playing a larger role in their lives.” Id.  Given this, the order denying the April 2017 custody motion was a final, appealable order.

So as to not leave you in suspense, the Court went on to address the merits of the case and concluded that the trial court made a mistake in finding that the father had forfeited his right to custody. The law favors the placement of children with their parents, so “unless it has been affirmatively shown that a biological or adoptive parent is unfit or has forfeited his or her right to custody, the U.S. Constitution and sound public policy protect a parent’s right to custody of his or her children.” 25 Neb. App. at 572.

If you want more information on the jurisdictional swamp of family law, check out my article at

Guarding Against Disability Discrimination Suits Arising from Employment

Posted in Discrimination, Employment

In hopes of leveling the playing field for individuals with disabilities seeking employment, the Americans with Disabilities Act (ADA) prohibits disability discrimination by employers with 15 or more employees with respect to terms, conditions, and privileges of employment. While the objective of this Act is admirable, employers are often apprehensive about interviewing and employing individuals who suffer from a “disability” (meaning a physical or mental impairment that substantially limits one or more major life activities). This apprehension may stem from a lack of understanding the ADA’s requirements, and fear that a misstep will result in a lawsuit.

In reality, the ADA leaves employers broad latitude in hiring and employment practices, as they are only required to provide reasonable accommodations to enable an otherwise qualified disabled applicant or employee to perform the job. Further, although an employer is prohibited from asking an applicant about the nature or severity of the applicant’s disability, the employer may ask her whether she can perform the duties with or without reasonable accommodations.

“Reasonable accommodations” include providing or modifying equipment or devices; job restructuring; modified work schedules; providing readers and interpreters; and making the workplace accessible. However, if the accommodation would cause “undue hardship” on the employer, the employer does not have to provide the accommodation. Essentially, if the employer can prove that an accommodation will cause significant difficulty or expense, the accommodation is not reasonable and the employer is within its rights to decline to offer the accommodation.

Providing further protection to employers is the fact that courts will not second guess businesses’ assessment of economic conditions, the individuals’ work performance, and staffing needs. Willnerd v. First Nat. Nebraska, Inc., 558 F.3d 770, 779 (8th Cir. 2009) (“In general, it is not the court’s role to second-guess businesses’ assessments of general economic conditions, their own performance, and their own staffing needs.”).  As long as employment decisions are motivated by reasonable financial or business concerns, and not discrimination, the employer should not have to worry about adverse legal action as a result of decisions involving individuals with disability. Any employer worried that an employment decision may result in a discrimination action should consult legal counsel before acting.

Instead of being apprehensive about interviewing and hiring individuals with disabilities, due to fear of discrimination allegations, employers can leverage the unique talents applicants may offer, all while knowing the ADA will protect them from liability for well-founded business decisions.

The Nebraska Court of Appeals Overturns Lenient Sentence of Sex Offender Where Trial Judge Cited Teenage Girls’ Promiscuity as Basis for His Sentence

Posted in Uncategorized

In an unpublished opinion, the Nebraska Court of Appeals recently remanded a case back to the trial court and ordered that the defendant be re-sentenced by a new judge. The opinion arose out of the conviction of 21 year old Taylor W. Welty-Hackett (“Welty”). He pled no contest to attempted first degree sexual assault.

The plea agreement stemmed from Welty’s intercourse with a 12 year old girl — who he claimed said she was 22. Welty said the 12 year old friended him on Facebook and after he accepted, immediately sent him a message saying she wanted to meet him. She also allegedly instructed him to bring a condom to their meeting. Using Snapchat, she arranged for him to pick her up at a local Wal-Mart.

Citing migraines, Welty said he ‘self-medicated’ by using non-prescribed controlled substances and alcohol, and that he had taken some pain pills and drank several beers before  picking up the girl. He admitted to the intercourse, but said the 12 year old instigated it. Otherwise, he claimed to be too drunk to remember much else.

The Judge’s Statements During Sentencing

Under Nebraska’s sentencing guidelines, the judge could have sentenced Welty to up to 20 years imprisonment. Instead, the judge sentenced Welty to 95 days of jail (time served) and 4 years of “intensive probation.”  He also ordered Welty to register as a sex offender.

The State appealed the sentence, arguing it was too lenient and based upon improper, impermissible and irrelevant considerations. In reviewing the sentence, the Court of Appeals quoted portions of the trial judge’s comments on the record, including:

“It’s clear that, at least according to [Welty’s] relation to what happened, and he’s the only one apparently who related what happened to the victim’s sister or the police, that the 12 year-old was interested in having sex and contacted him for that specific purpose, even though she apparently had no prior knowledge of the person, except potentially by reputation. She was the aggressor, she made the advances. She actually grabbed him sexually and asked whether he was going to bring condoms.

That doesn’t excuse the act, but unfortunately, what it does do is remind the court of repeated instances it’s heard of over the last several years of occasions where early teen and preteen girls for whatever reason have decided that they want an experience and go out and force the issue with people that they know are older. And probably out to know a hell of a lot better. And these girls are encouraged to do so by their own friends, by some kind of ethic which encourages them to dispense with their virginity or anything similar so they can have the experience that everybody else is bragging or arguing about. . . .

 Sentences in somewhat similar cases have run anywhere from 2 to 4 years up to 12 years. And the defendant’s already served some 95 days in jail. At a minimum, he’s going to end up spending probably the next 25 years, if not his lifetime, functioning as a registered sex offender. . . .

I will tell you that in the past, Mr. Welty, probably a year ago, two years ago, you would be on your way to prison. But I’m going to try to bring some balance to the situation. So I am going to order or find you are a candidate for probation. It’s not going to be a particularly easy one. . .

Please understand, you screwed up big time, but I’ve got to find some way of bringing some balance back into the system, given the nature of what’s been occurring in this community. . . .”

The Court of Appeals’ Decision

The Court of Appeals agreed , finding that the trial court judge had considered improper  factors when fashioning Welty’s sentence. Particularly concerning to the Court was the judge’s “statements about the promiscuity of teenage girls and the need to bring ‘balance’ into sentencing sexual offenders.”

As part of its analysis, the Court referenced the 2007 case of State v. Thompson. There, a Sydney, Nebraska, judge sentenced a man who pled no contest to two counts of sexual assault of a child to 5 years’ intensive supervised probation on each count, to run consecutively. In doing so, the judge made reference to the defendant’s 5’1″ “small physical stature” and how it may cause problems for him if he went to prison. She was later removed from the bench after 52% of the electorate voted not to retain her.  (You can read about that here.)

In setting aside the sentence, and ordering that Welty be re-sentenced by a different judge, the Court of Appeals noted that “the victim’s appearance (whether she appeared older than her given age) and whether she was the ‘aggressor’ of the sexual contact” were irrelevant to Welty’s guilt (though, the Court noted, the trial court judge explicitly recognized that these factors did not excuse or justify Welty’s actions).

You can read the entire opinion here.

You did what?! Five Lessons for What to Do – and Not Do – As an Attorney

Posted in Ethics, Litigation Tips

When you practices in the area of legal malpractice defense, you get to see all of the creative ways attorneys get themselves in trouble, or find themselves on the receiving end of a malpractice suit or disciplinary proceedings. Most recently, I came across the story of an Ohio attorney who was indefinitely suspended by the Ohio Supreme Court after being convicted of unauthorized use of his client’s property (a fourth degree felony).

The 37 year-old attorney’s foray into feloniousness began in August 2010, when he met a woman at the county jail who had been arrested after marijuana was found growing in her basement.  The woman told the attorney she did not currently have the money to pay him to represent her, but was willing to sell a piece of land in order to pay his legal bills.  The attorney advised her to transfer the land to him. The client did so, believing the attorney would sell the land, take out his legal fees, and pay her the difference.  Instead, the attorney sold the land (netting $127,767 from the sale), failed to disclose the sale to his client, and kept all of the proceeds. He did so even though he had provided only $9,000 in legal services.  When she attempted to contact the attorney about the sale, he did not return her calls and canceled appointments she had made with his staff. He eventually told her she was not entitled to any portion of the sale proceeds because he had agreed to accept the land as a flat fee for his representation.

Though the client eventually received her portion of the sales proceeds (six years later), her recovery did not stop the Ohio Supreme Court from disciplining him for his numerous violations of the rules of professional conduct, including the rule governing transactions with clients, keeping one’s client reasonably informed of the status of their matter, and charging an excessive fee. Surprisingly, instead of disbarring the attorney, the Ohio Supreme Court indefinitely suspended him, but ordered that he could not seek reinstatement until he successfully completed or was released from the five year “community control” sanction imposed as part of his criminal sentence.

5 Lessons for Practicing Attorneys

The Ohio attorney’s situation teaches us some important lessons. Below are a few, as well as a few other key principles to guide you.

  1. Never steal your client’s money. Ever. Just don’t do it, no matter how dire your financial circumstances. Even an insignificant amount will get you disbarred.  And for the record, ‘borrowing’ is the same as stealing in the eyes of most bar associations. State ex rel. Nebraska State Bar Ass’n v. Ledwith, 197 Neb. 572, 575, 250 N.W.2d 230, 232 (1977)(“We have consistently held that a conversion by a lawyer of trust funds in his possession requires his disbarment.”); State ex rel. Nebraska State Bar Ass’n v. Becker, 226 Neb. 369, 369, 411 N.W.2d 361, 361 (1987) (disbarred for failing to pay $383 in client’s medical bills and for making intentionally false and misleading statements). 
  2. Think long and hard before entering into a business transaction with a client. Even if you think the transaction is a good idea, re-think it.  And if you still think it’s a good idea, make sure you comply with Neb. Ct. R. Prof. Cond. § 3-501.8.
  3. Do not overcharge your clients for legal services; and under no circumstances should you agree to accept cocaine as payment for legal services. You will be disbarred. State ex rel. Nebraska State Bar Ass’n v. Payne, 226 Neb. 727, 728, 414 N.W.2d 283, 284 (1987) (reciprocal disbarment where the attorney had been disbarred by the State of Indiana for possession and use of cocaine, purchasing and possessing narcotics, failure to appear for client at hearing and accepting cocaine as payment for legal services).
  4. Do not ignore your client. You will probably find yourself on the receiving end of a bar complaint. Also, if you make a mistake, do not falsify documents to try and cover your tracks.  You are inviting disbarment. State ex rel. Counsel for Discipline v. Thew, 281 Neb. 171 (2011) (judgment of disbarment for multiple ethical violations, including failure to communicate with client and falsifying documents); State ex rel. Counsel for Discipline v. Thebarge, 289 Neb. 356 (2014) (same).
  5. If Counsel for Discipline comes knocking, answer the door. Ignoring disciplinary proceedings will not make them go away. It will only increase the severity of any sanctions.   Thebarge, supra; State ex rel. Nebraska State Bar Ass’n v. Gast, 298 Neb. 203 (2017); State ex rel. Nebraska State Bar Ass’n v. Gerdes, 232 Neb. 845 (1989)(attorney who had been suspended failed to comply with notice requiring him to notify his clients and opposing counsel that he was suspended from the practice of law, and then failed to respond to an order to show cause why he should not be held in contempt of court and disbarred from the practice of law for failing to give the notification, was disbarred).

You can read the Ohio Supreme Court’s opinion at



Losing the Battle Before It Has Even Begun: Preserving Your Appellate Record

Posted in Appellate Work

Today, in its only published opinion (a 35-pager to boot), the Nebraska Court of Appeals reminded attorneys of the importance of preserving your trial court record for appellate review.  That constitutional argument, no matter how brilliant, will mean nothing unless you raise it at the trial court level, and give the trial court an opportunity to pass judgment on it. Also, if evidence is excluded, and you believe the exclusion to be error, you must make an offer of proof to preserve the issue. Otherwise, the appellate court has no way to assess the merits of the evidentiary dispute: “Without knowing the specific contents of the complete recording, including the exact language used by Epperson or the tone of his voice, we simply cannot say whether the district court erred in sustaining the State’s objection.” State v. Heng, 25 Neb.App. 317, 337 (December 5, 2017).

Getting an appellate court to reverse a decision of the lower courts is hard enough. If you fail to preserve your appellate record, however, you will have lost the battle before it has even begun.

You can find the opinion at

Preparing for the Future: Estate Planning for Parents of Children with Disabilities

Posted in Transactional

Parents of special needs children must be cognizant of special considerations in virtually every area of life. Estate planning is no exception. The stringent eligibility requirements of SSDI/SSI and Medicaid/Medicare make the child’s continued eligibility a paramount concern when determining the child’s inheritance. Even if the child is currently employed and not eligible for disability benefits due to the child’s income, parents must evaluate how long the child will be able to continue making enough income to cover disability-related expenses and the impact that inheritance will have on the child’s eligibility for future disability benefits.

To be eligible for SSDI/SSI a disabled individual who is unmarried can only have a mere $2,000 in resources. The resources cap for Medicaid eligibility is $4,000 for an unmarried individual. (For more information on eligibility requirements and the definition of a “resource” under the regulations, visit and These resource caps do not allow for a substantial inheritance by any means. However, parents of children with disabilities can preserve the child’s eligibility for disability benefits by leaving inheritance for the child in a resource-exempt trust or account. Parents should consult an attorney to determine whether to establish any of the following trusts or accounts for their child.

Third Party Special Needs Trusts are irrevocable trusts that can be established by parents, grandparents, legal guardians, or courts, but not disabled individuals who are beneficiaries of the trust. A trust may be funded with the beneficiary’s assets, but the beneficiary cannot act as trustee or control the trust. The beneficiary must be under age 65. At the beneficiary’s death, the remaining assets in the trust are paid to the government to repay any government benefits received by the beneficiary.

Pooled Trusts are irrevocable trusts that are established and maintained by a non-profit charity. A disabled person, parent, grandparent, guardian, or court may establish a subaccount for the beneficiary that is grouped with subaccounts of other beneficiaries into a single pooled trust. The beneficiary may be over age 65.

“529A” Accounts (known as ENABLE Accounts in Nebraska) allow disabled individuals of any age who are medically eligible for SSI or SSDI and became disabled prior to age 26 to contribute up to $14,000 of exempt assets per year to the account (with a maximum exemption cap of $100,000).

While these trusts and accounts may seem to offer disabled children the best of both worlds by allowing them to continue to receive disability benefits even after receiving an inheritance, the reality of these options is not as rosy as one might hope. Each of these trusts and accounts impose spending restrictions for the assets and limit the ability of the child to control the child’s own inheritance, which may be particularly disheartening to parents of children with strictly physical disabilities. Thus, parents must evaluate the totality of their circumstances with sound legal input to develop a customized estate plan that meets the unique needs of their family.

“Nebraska Nice”? Some Say Not As Friendly As Before

Posted in In-House Counsel, Tort Reform

If you track the periodic Lawsuit Climate Survey, published by the U.S. Chamber of Commerce’s Institute for Legal Reform, you know the 2017 rankings were issued last month.  The 2017 Survey constitutes the 11th fielding of the survey since the Institute for Legal Reform first began conducting its survey in 2002.

The Survey

This year’s survey was based on telephone and online surveys of 1,321 in-house counsel, senior litigators or attorneys, and other senior executives knowledgeable about litigation matters at public and private companies with annual of at least $100 million. They were asked to give each state a grade (A through F) in the following areas:

  • Enforcing meaningful venue requirements
  • Overall treatment of tort and contract litigation
  • Treatment of class action suits and mass consolidation suits
  • Damages
  • Proportional discovery
  • Scientific and technical evidence
  • Trial judges’ impartiality
  • Trial judges’ competence
  • Juries’ fairness
  • Quality of appellate review

These elements were then combined to create an overall ranking of the states’ liability systems.

According the Survey, a state’s litigation environment may impact a company’s business decisions, including where to locate or do business. Of the survey respondents, 85% reported that the state’s litigation environment is “likely” to impact important business decisions; 42% said “very likely;” and only 5% answered “very unlikely.”

Nebraska’s Results

Historically, Nebraska has fared well in the survey. In the prior 10 iterations of the report, Nebraska ranked No. 2 among the 50 states six times, and ranked 3rd three times.

This year, however, Nebraska dropped four ranks: from 3rd in 2015 to 7th in 2017. It is, in fact, Nebraska’s worst ranking since the survey began. Fear not, though, as the report indicates that there have been changes in the overall ranking criteria, such that the 2017 score “does not provide an apples-to-apples comparison to previous years.”

Beyond the overall score, it is telling to look at how Nebraska ranked in the individual elements. In most areas, Nebraska’s rank in a particular area was comparable to its overall rank.  But there were a few outliers.  For example, it ranked “18” in Enforcing Meaningful Venue Requirements; “11” in Damages, “15” for Juries’ Fairness, and “17” for Quality Appellate Review.

The State’s ranking vis-à-vis Quality Appellate Review is especially surprising considering that Nebraska achieved ranks of “7” and “6” for Trial Judges’ Impartiality and Trial Judges’ Competence, respectively.  It is unclear why Survey respondents believe there to be a disconnect between the quality of our trial court judges and the quality of our review at the appellate court level.

If you would like to review the entire survey, you may find it here.

P.S. As between Nebraska and Iowa, Nebraska is still “Nicer than Iowa,” as Iowa achieved an overall rank of 13.

Nebraska’s Summary Judgment Statute Gets A Facelift

Posted in Motion Practice

One of the challenges of being an attorney is keeping up on the law. Not the case law –the Nebraska Court of Appeals and Supreme Court publish their opinions weekly, here and here.  The day before the opinions are published, they even post advanced notice of their anticipated opinions, here and here. To make sure you don’t miss out on new developments, the Courts will even send you a list of the anticipated and newly-published opinions if you sign up at

No, the bigger challenge for attorneys is staying abreast of changes to the statutes.  Unlike the Courts, neither the Nebraska Unicameral nor the Governor’s office sends periodic updates. As a result, legislative changes may impact your daily practice of law and you may not even know about it.

This can be especially problematic when there are legislative makeovers to long-standing procedural statutes.  Attorneys who have been practicing for some time have the more common statutes committed to memory and may not be inclined to look them up. There is no need to look up something you already “know,” right?


Take, for example, Nebraska’s summary judgment statutes.  Did you know one of the provisions recently underwent substantial changes? Or that these changes have been in effect for a few weeks now?

For as long as I have been practicing, Nebraska’s summary judgment statute read:

The motion shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings and the evidence admitted at the hearing show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The evidence that may be received on a motion for summary judgment includes depositions, answers to interrogatories, admissions, stipulations, and affidavits. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

Besides replacing “issue” with the word “dispute,” the new version of the statute imposes certain requirements with respect to evidence.  Under the new § 25-1332, gone are the days of parties simply parroting the phrase “genuine issue of material fact.” It is now a “genuine dispute of material fact” – and you have to provide citations to the evidence in support of your position. Under subsection (2),

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(a) Citing to particular parts of materials in the record, including depositions, answers to interrogatories, admissions, stipulations, affidavits, or other materials; or

(b) Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Best of all, the Unicameral gave the statute teeth. If the nonmoving party fails to comply with the new rules, the court has a host of options available to deal with the party’s non-compliance.  This includes treating the fact as undisputed for purposes of the motion. Under subsection (3):

If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by subsection (2) of this section, the court may:

(a) Give an opportunity to properly support or address the fact;

(b) Consider the fact undisputed for purposes of the motion;

(c) Grant summary judgment if the motion and supporting materials, including the facts considered undisputed, show that the movant is entitled to summary judgment; or

(d) Issue any other appropriate order.

Of course, the statute also gives judges an ‘out’ by allowing the nonmoving party to address the fact; and the court can “issue any other appropriate order.” As a result, judges are not obligated to hold the parties’ feet to the fire. But for the more rule-oriented members of the bench, they now have legislative permission to strictly enforce the rules.

Oh the Humanity! What to Do When the Nebraska Court of Appeals Cancels Your Oral Argument in an Appeal PART II

Posted in Appellate Work

Cathy Trent-Vilim

This post is authored by Cathy Trent-Vilim, a partner in LDM’s litigation department.  This is Part II of her two part post.

Welcome to Part II.  If you’ve found your way to Part II, chances are you’ve received notice from the Court of Appeals, at one time or another, notifying you that the Court has elected to forego oral argument in your case.  As you learned in Part I, the Supreme Court has now provided parties with a procedural mechanism for requesting oral argument after notice canceling oral argument has been sent.

The question, then, is whether you should choose to take advantage of this procedural tool and request oral argument.  Certainly, the answer is ‘it depends on the facts of your case.’  However, when deciding whether to seek oral argument, consider the following:

  1. Was your case was procedurally complex?  If so, oral argument may help clarify for the Court the procedural background in ways your brief does not, especially if you were constrained in your review of the procedural complexity because of page limitations.
  2. Was the case was factually complex or convoluted?  Like procedural complexity, a factually complex case may be difficult to fully explain in a written brief and oral argument will give the Court an opportunity to ask clarifying questions.
  3. Has there been a change in the relevant law subsequent to the parties’ briefing of the case?  If so, oral argument will give you an opportunity to point out the change in law and how it impacts your case.
  4. Are there issues related to the standard of review applicable to your case (i.e., the standard of review has not yet been decided, or the case law is inconsistent)?  If so, oral argument will give the parties and Court an opportunity to discuss what the proper standard should be.
  5. Can oral argument assist the Court in determining the scope of the question presented?  For example, if the Court is deciding a question of first impression, oral argument may help the Court in tailoring its opinion to the issue in your case, thereby avoiding a broad or sweeping ruling which could have unintended consequences.
  6. Could the Court’s ruling adversely impact an entire business sector or industry?  If so, those issues may not have been fleshed out in the parties’ briefing, but are factors for the Court to consider in its ruling.
  7. Are there important policy considerations the Court should consider when reaching its decision?  As with industry consideration, you may not have the ability to fully address these issues in your brief.  Nevertheless, they are important considerations for the Court.

If one or more of these conditions exist, the Court may very well see the benefit of oral argument.  Do not assume that because the Court has elected to submit your case without oral argument, it has already rejected these considerations.  File your motion and put your best foot forward.

Finally, if you succeed in your motion, come prepared.  As the saying goes, you almost never win an appeal on oral argument; but you most certainly can lose the appeal during oral argument.