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What The Legal Department Needs To Know About Appeals: M.C. Sungaila Appellate Specialist

The Legal Department | M.C. Sungaila | Appeals

 

Litigation management is meat and potatoes for most in-house legal departments, but it’s a rare case that goes up on appeal. The stakes are higher in those cases, and you need expert counsel to help navigate the process. Appellate specialist M.C. Sungaila is in The Legal Department to tell you what you need to know. She has appeared before many state and federal appellate courts, including the U.S. Supreme Court and the Inter-American Court of Human Rights. M.C. also knows a lot about the bench after interviewing more than a hundred judges and justices for her award-winning podcast, The Portia Project. Listen through to the end to find out where you can get a “free” moot court exercise.

Listen to the podcast here

 

What The Legal Department Needs To Know About Appeals: M.C. Sungaila Appellate Specialist

I am M.C. Sungaila. I am an appellate lawyer, legal strategist, and a partner with the Complex Appellate Litigation Group boutique. I practice with a number of very experienced appellate lawyers, 21 of us at this point in time. The fun fact would be in between my clerkship and working in a law firm, I was an extra in an opera, Opera Pacific’s La bohème. I was woman number three.

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Welcome to the show. Our guest is an appellate specialist and a longtime friend of mine, M.C. Sungaila.

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M.C., how are you?

Thank you so much for having me on the show.

It’s the place to be. In thinking about the guests and the content I wanted to put out for our in-house audience, I picked appellate law because it’s one of those things that in-house counsel don’t think about every day. Usually, when you have an appellate issue or an appeal, it’s a really big deal. I’m hoping this is something that in-house lawyers can put in their toolkits and refer back to as they’re managing their litigation portfolio.

Be prepared before you need it, right?

When To Get Appellate Counsel

Exactly. You don’t want to build the boat as the flood’s coming. I want to talk a little bit about when to get appellate counsel involved. I’ve had in my career maybe half a dozen appeals that I managed in-house. A lot of times, it was unexpected. You’re not expecting to lose or have an issue that you need to take up. It’s somewhat of a surprise. You’re like, “The law firm I’m working with should  handle it.” That’s maybe not the best situation. Maybe backing up, when is the ideal time to get appellate counsel involved?

There are certain types of cases where you can anticipate the need or that it’s likely that one side or the other is going to appeal whatever the decision is. Maybe it’s a case of such institutional importance or a series of cases of institutional importance. That’s one set of cases that you know you want someone who’s an appellate strategist and focused on the legal issues in the case and beyond the case to be involved. Usually in those, that’s one set.

It’s pretty early when you’re figuring out the issues and the overall legal strategy of the case because you want to preserve issues so that you can raise them later on appeal. Even if it isn’t necessary to preserve the issues per se, many judges will say, “We take you a lot more seriously. Your arguments on appeal are not just sour grapes. You raise this issue throughout. You were consistent even before you lost, so we’re going to take this argument pretty seriously. You didn’t come up with this as a reason to overturn a decision.” There are others where you say, “I can’t foresee it that way, but maybe there’s an important motion.” Maybe you’re in post-trial motions in a case and you’re like, “This is going to help set up the appeal.”

That’s good advice if it’s an issue you’re not sure is going to go your way and you think that you’re going to end up having to take it all the way to get that appellate lawyer on the team early.

Part of it is to assess it. If you have a portfolio of cases raising similar issues, sometimes, we can help assess, “This is not the one you want to take up. Wait for another one because there’s a factual scenario or there’s something going on in this case that is probably not going to predispose a court to your position on that issue.”

If you have a portfolio of cases raising similar issues, appellate lawyers can help you assess which one you should take up or when to wait for another one. Click To Tweet

I’m thinking back to my time at USC. There was a lot of Title IX litigation around campus sexual assault because there were new rules that came out from OCR and how you were supposed to handle appeals of disciplinary action. We didn’t really think of it at the time, but it would’ve been a good idea to maybe take that portfolio and figure out what the best case was to take forward.

There are those issues in there. What kind of procedures are folks required to get? Those have ended up going on appeal.

Putting Together A Defense Team

It’s a big public policy issue. Picking counsel is one of the hardest parts of the in-house job. I know if you’re selling legal services outside counsel services, it feels like a little bit of a mystery, but it is very difficult. It puts a lot on the in-house team to make the selection. There is a bent when you’re already working with a litigation firm. You’re like, “They should handle the appeal.” Do you have thoughts on that? Are there times to have a fresh set of eyes?

There are a couple of different ways to do it. I always consider that the trial lawyers are also my client or my partner in the case. They have quite a different perspective being on the ground if I wasn’t on trial with them, which I sometimes am. As an appellate lawyer, I’m going to say it’s better in one capacity or another to have an appellate lawyer involved on appeal because that’s what we do. We can see things or make sure something doesn’t go off the rails. We have an understanding of the particular judges. We know what they like to see, but that doesn’t always mean that we’re necessarily going to argue it or we’ll take the lead with it.

Sometimes, we never appear and I’m consulting with the trial counsel. It depends on what your budget is, the potential impact of the case, and how you feel. Is the trial counsel a really good writer? Have they done some appeals, although not a lot of them? Maybe that’s something that would work in a ghostwriting capacity. In general, we would prefer to partner and work on the appeal with trial counsel.

The other thing that happened to me in my career is one other life lesson that does apply to appeals. It’s to have watched your litigation counsel argue in court before you hire them. I had a matter where I  had to move the case. I watched this lawyer make a pretty significant motion for a preliminary injunction. They were terrible. I had no idea until we were in that court. My tip for the in-house audience is to have done a dry run or see folks in action before you put them on your pleadings.

That’s a really good idea.

I would assume as an appellate lawyer, you have the oral argument chops. You don’t get into that role if you can’t hold your own in the courtroom.

That’s right.

Getting A Temporary Stay

One thing that is not always obvious also from an appellate standpoint, and I’ve done some litigation but I’m not a hardcore litigator, is getting a stay. I don’t know if it’s California-specific, but under what circumstances should you be aware that stays may not automatically happen because you’ve appealed something?

I always think that’s true. In many cases, you think, “I filed my notice of appeal. Everything’s cool. We filed that. We preserve that. We’ll file our brief now and everything’s good.” When there’s a money judgment involved in particular, that is not the case either in state or federal court. The rules are different on also how you go about getting them and who you go to for them. You could get a bond yourself and then submit that to the court.

In federal court, the federal court has to approve the amount of the bond and all of that. That’s at the district court level. Each is a little bit different for the appeal. Even before the appeal, you want to make sure that you’re staying it up until the time to appeal as well. There’s always a temporary stay procedure until the notice of appeal is filed. You want to make sure you’ve taken advantage of that. Maybe you decide not to appeal after all, but you want to place-hold it. That’s how you would do it with a temporary stay.

The Legal Department | M.C. Sungaila | Appeals
Appeals: Even before making an appeal to the court, make sure you’re staying it up until the time to appeal. There’s always a temporary stay procedure until appeals are filed. Make sure to take advantage of that.

 

Your litigation counsel should know that, but it’s also something for in-house counsel to be aware of because those can sneak up on you.

If you’re thinking about it in advance, for example, you might be able to really easily fold it into some other court hearing you’re having. If you don’t think about it until often, then you’re like, “Now I have to go do a motion.”

Tips For Managing A First Appeal

If you were advising in-house counsel who doesn’t do a lot of appellate work, do you have any tips for them as they’re looking to manage their first appeal?

I would say two things. Never waive oral argument. If you have the right or possibility of oral argument, always take it. Unlike other court proceedings, it’s the only time you can get face-to-face with the judges and answer their questions. You want to have that right. If you’re in federal court, it’s not up to you. The Ninth Circuit decides whether they want to see you present an argument or not. In courts where it’s up to you, even if you’re the respondent, never waive.

Lawyers must never wave oral argument. It is the only time they can get face-to-face with the judges and answer their questions. Click To Tweet

If your trial counsel says, “It doesn’t matter,” is that an indicator that maybe you should bone at that appellate specialist?

No appellate lawyer would say, “It’s fine.” We would all say, “This is our only chance to eyeball-to-eyeball with the panel and get a sense of what’s concerning them or what they’re thinking and be able to answer those questions.”

Oral Arguments

I did a year of clerkship. It was an externship with the Missouri Court of Appeals. I felt like the judges, many times, had made up their minds before the oral argument. This was a couple of years ago, but I felt like the oral argument didn’t make that much of a difference, at least in that court.

It depends on the court. Another difference between state and federal is the federal court, they, on purpose, do not have a meeting before argument to tentatively decide how many votes we have to draft an opinion or anything like that. All of that happens at the conference right after an argument. They share bench memos and all of that, but they don’t sit around at the table and formally talk about it. In that context, an argument can be much fresher.

Even though in the state court of appeal, they do work up draft opinions, they have met, and all of that prior to argument. Many of them will still say it matters to them. Some state courts of appeals in California have the focus letters. These are the issues we want to hear about. They’re telling you, “You could make a difference here. We’re not in alignment on these points,” or, “We have questions.”

Often, there are questions about the record that even though they’re carefully parsing it, there are things that you know because you’ve consulted with trial counsel and you might have a different sense of everything that happened that might not be in the record. That helps you understand the record. Sometimes, you see the light bulb go on when you describe something that happened in the case to the panel and they’re like, “We didn’t see that. Now, we do, and that changes how we see this case, what our reasoning would be, and what the decision would be.” There have been enough times like that that you want to be there.

Going Through Trial Records

I heard you on another show talking about the nuts and bolts of the process for preparing a case for appeal and how much time and how important it is to go through the record. Especially if a case is in the same firm, as an in-house lawyer who’s watching a budget, you’re thinking, “You litigated the case and now I’ve got to pay somebody else to go through the record?” Based on your last interview, I feel like that’s where there’s a lot of gold, which an appellate lawyer might find, that’s worth the investment.

We look at things with a different lens. Whether we’re in the trial court or the appellate court, we’re looking at it through the legal lens. Sometimes, even consulting in the trial court, we’re roundtabling an issue and the trial counsel will see it from an evidentiary standpoint and actual witness. I’ll say, “Here’s this broader legal theme that we’re addressing in this case. Maybe we can make a legal argument, not an evidence code argument, that would allow you to get in the evidence you want and exclude the other evidence that you don’t want.” That’s how I look at the same problem. We’re all looking at different parts of the elephant. I’m like, “Here’s a different way to go.” That’s helpful there.

It’s the same thing with the record. We’re replicating as the appellate lawyer the role of the appellate judges. They weren’t at the trial. They weren’t in the pretrial. They didn’t do any of that stuff. That seeps into your brain when you’re the trial lawyer. Every time you ask a trial lawyer about this story of the case, there is inevitably stuff that never is in the record because their story is much broader than that. Their understanding of the case is much broader than that, which is helpful, but you can’t bring that up to the court of appeal.

We are the court of appeal. We are fresh-opening the record, “What do we see? What do we see from a legal standpoint? What shows up? What story comes through in the cold, hard light of the record?” as it were. That can be very different from even what you know happens. If it’s not in the record, it didn’t happen to the court of appeal. There’s value in that.

We’ve either been in trials or we’ve seen so many trial records, even if we didn’t try the cases, that there will be things that jump out at us because judges are human. Whether they’re in the trial bench or the appellate bench, there might be 1 or 2 things that are nuggets in the case that bother you. If you’re an appellate, you look at it and go, “That seems wrong. The legal standard’s wrong or something that happened in the proceeding was wrong and it seems to have a thread. It was the thread that ended up causing the result.” There’s prejudice from it and we can make that case. It will jump out at us because we weren’t in the middle of it. We put it in the context of all the other records we reviewed.

It’s almost like you’re putting together a puzzle.

That’s exactly it but for a different audience.

I tell everybody I’m lawyer light. Meaning, I see the legal issues, but I see myself as a bridge between the technical lawyers and the business people. I know judges are technical beings. That’s their role. I wondered how much you think it matters that the papers are written really well, are easy to understand, and that there’s a story as compared to, “This is the law. It’s super clear,” and leaning on a technical legal argument.

Storytelling is important at both levels. The medium of the storytelling is different and the focus of the story is different. It has to be a legal error that made a difference in the appellate court and in the trial court. It’s much broader. You’re telling stories to a jury to decide the facts in the first instance. It’s a different venue and different audience, but it’s all storytelling because judges are human as well.

The Legal Department | M.C. Sungaila | Appeals
Appeals: You are telling stories to a jury to decide the facts in the first instance. Be sure to brush up on your storytelling skills.

 

That’s my bent. I could be wrong, but I feel like if I was picking up an appellate brief and it read really easily, I could understand what the person was trying to get to, and I didn’t have to read a bunch of footnotes and go back and forth in a brief, it’d be more convincing.

That’s exactly it. You have to think about the position of these judges. Yours is one of many cases that they have to review in many briefs. Even though they’re called briefs, they’re 150 pages in 1 appeal and they’ve got 40 of those appeals. You want to be the easy brief.

I want to be the easy one.

Be the one you want to read and the one you trust to read so that when they’re writing the opinion, you can see snippets of your brief and the opinion. Paste that in there like, “That’s a good record cite. We’re credible and reliable. Everything we cite is accurate.” It makes it very easy for them to put it in there.

Is that how you know you’ve succeeded when you see your own brief quoted in the opinion and be like, “I did it.”

Yes. It follows the flow of your argument. It may have some of what you wrote, but you’re like, “Good.”

Engaging An Appellate Counsel

I have to back on the point about when to engage appellate counsel. I had an appeal a couple of years ago. It was amazing that the lawyer who had done the motion for summary judgment wanted to do the appeal. I was like, “We’re going to go ahead and hire somebody who does appeals night and day.” They worked well together. It was amazing, that fresh set of eyes and that appellate eye. That person was able to grab stuff in the record that our trial counsel forgot about. It was interesting to see that in action.

We’re fresh. We have a different perspective.

I ended up winning. That was fun. It’s fun to win an appeal.

Sometimes, we can have a different legal perspective on something. If it was you won on one ground, but there’s a purely legal issue that doesn’t require record development, we have a different way of framing it. We’re like, “You can win on the way you won below, or here’s another way that may be cleaner. Maybe you only had to win on that 1 issue and not 4 in order to get a reversal.”

It’s really a good investment. Let me ask. In selecting appellate counsel, what should we be looking for?

They have been there before. They’re experienced maybe with the particular court that you’re in front of, but maybe not necessarily. It depends. That’s not necessary. It’s more familiarity with the appellate process and who has briefing and argument experience. It’s also who works well with the whole team. You want the wisdom of the trial counsel to be included.

You don’t want someone who goes, “I’m never going to talk to that person.” We have to be working as a team. Also, somebody who thinks strategically, which appellate lawyers generally do, but more strategically in in-house counsel across cases. They’re like, “Is this the case? Is this not?” Sometimes, litigators can get attuned to their case, the trees for the forest, to provide that.

The Legal Department | M.C. Sungaila | Appeals
Appeals: Hire an appellate lawyer who thinks strategically just like an in-house counsel across cases.

 

The appellate lawyer that’s best for in-house folks is someone who goes, “Here’s the whole forest. Tell me the pros and cons. Should we resolve this? Should we file an appellate brief and then use that as leverage to resolve this case? It may not be the best one. We could get an adverse ruling that could affect other barriers or cases that you have but use that to leverage it.” Be thinking about it in that way instead of rote like, “I’m an appellate lawyer and I’m going to do the brief. I’m going to argue.” You keep thinking about that strategy through the whole proceeding.

Bad facts make bad laws.

It’s so true every time. Sometimes, an appellate lawyer can see the bad fact. You haven’t seen it and it’s all put together. We have the ruling and we go. The appellate court is not going to like that. That matters as opposed to a jury or a trial judge.

M.C.’s Legal Podcast

It’s a bummer. Back to your original comment about how as an in-house lawyer looking at if you have a portfolio of a certain kind of litigation, you are using that appellate partner to help you pick the right one. You have a little bit of I don’t know if a hobby or a side hustle is the right way. You’ve developed an impressive podcast and audience around judges and interviewing judges. It’s the Portia Project podcast, which I’m a huge fan of. How many hundred judges do you think you’ve interviewed?

We’re at almost 175 interviews so far and about 100 judges.

I bet there is no one else that had so many off-the-record or on-the-record conversations with judges. I know that those interviews are more about their career paths, but have you learned anything? Are there any common threads about how they think about appellate cases?

Yeah. I do ask them some appellate-focused questions. It’s primarily appellate judges, but some trial judges as well. The first point is that judges are human. You really get that sense of here’s the person behind the robe in these interviews. It reminds you there are individuals who are deciding these cases. They have human stories, and they probably like to hear human stories too. Be mindful of crafting your story on appeal in that way as well.

Judges are human. Lawyers must get a sense of the person behind the robe. They have human stories and probably like to hear human stories too. Click To Tweet

There is something we know but haven’t really thought about it this way. I’ve asked a few of them this, but Judge Millette on the DC Circuit Court of Appeals was an amazing appellate lawyer before going on the bench. She argued before the US Supreme Court many times. She was in the SG’s office, so a very experienced appellate advocate.

I asked her, “What do you know now being on the bench that you wish you knew even when you were an advocate as accomplished as you were?” She said the oral argument isn’t the end, it’s the end for us as the client and the advocate because that’s the last time we see anyone or the last time we engage on the case. The next thing we get is the opinion in the mail. For them, that’s one part of the process. They engage with each other. They use the argument to lob questions to each other to try and see where they stand and to start the conferencing process during the argument to some degree. They then have this long time period where they’re drafting and going back and forth in concurrence or dissent like, “Where’s your vote at?”

When you understand it’s one part of that process and your last opportunity to be part of their larger process, when they say things like, “Answer my question,” or things like that, you understand why they say that. It’s because it’s part of this larger continuum for them. It’s not just that particular setting. You go, “That’s my last opportunity to help them help me.” It’s thinking that the oral argument isn’t the end for the judges. We all know that, but when you think about it, you go, “I’m going to look at argument differently,” or, “I’m going to think about brief writing a little bit differently knowing what they’re going through.”

It feels like that would make the stake so much higher for the lawyer arguing that oral argument.

It doesn’t make you calmer. When I thought about that, I was like, “Wow.” For many people, the lore will be that oral argument doesn’t matter. When you hear that and think about it, you’re like, “The brief matters. The argument matters.” You get so few touch points on appeal as opposed to a case in the trial court where you have many interactions with the trial judge along the way Before the trial and during the trial. It’s different.

The Legal Department | M.C. Sungaila | Appeals
Appeals: Lawyers have to get a few touch points on appeal as opposed to a case in a trial court where you have many interactions with the trial judge along the way.

 

Mock Exercise

It’s a mystery. Part of our intrigue with the Supreme Court stuff that’s been going on is that you know them from argument, and then who knows what happens behind the scenes? I want to ask about, and this is another technical question, the mock exercise. Is that worthwhile?

Doing a moot before argument?

Yeah.

Everybody does that. Most appellate lawyers do it at least twice. The SG’s office does it twice usually. There are variations of it. I’d never do an argument without at least 2 or 3 prep sessions. Some are more formal than others. There is an informal table reading of the questions.

Do you do that in front of the client or in front of in-house counsel?

It depends. Sometimes, we’ll do a moot with in-house counsel, and other times not. It depends on whether somebody wants to be that engaged. We have 1 or 2 without that. It gets more formal as you move along.

Have you done it with a retired judge before?

That’s what I was going to say. I was like, “I also have done it that way.” Also, I have a lot of folks who are very well-versed in appellate law that we will do it for each other where we’re moot judges for each other in cases. I’ll put a plug for Loyola Law School, which is the school I teach at as well. Loyola has a practitioner moot program for Ninth Circuit or California Supreme Court cases largely but sometimes court of appeal cases too.

It’s something that there’s a lot at stake in particular. They will put together former Ninth Circuit clerks or professors across all law schools, so it’s not just Loyola professors, who are experts in the particular subject area of the appeal as well, particularly if it’s a Supreme Court or Ninth Circuit case, and they will moot you. Sometimes, I’ve had clients participate in those moots.

Do you have to pay for it?

That is free.

Everyone in the California and Southern California region, that is a big tip right there. You could have a free moot.

100%. It’s incredible. It’s been so valuable for California Supreme Court arguments that I’ve done in particular because the group up there has changed. Particularly with both Justice Cuéllar and Justice Liu up there with an academic background, it was really helpful to have law professors asking questions. They would frame questions in a way that those justices would tend to do so you’re prepared for questions from those people with that kind of background.

Tips On Professional Development

That is super cool. I have a couple of final wrap-up questions. One of the other goals of this show aside from giving lawyers technical information that they can use is providing a resource for professional development. I always want to hear from guests about what they do for their own professional development.

You and I both have served quite a bit in bar associations, which is amazing. You and I would vouch strongly for the Women Lawyers Association of Los Angeles. Bar associations are helpful because they give you skills training. Also, you’re meeting people in your geographic area who are doing practices all over the place. You would never otherwise meet a district attorney, a criminal defense lawyer, a county counsel, or something like that if you were in private practice as well as judges and all of that. It gives you a broader sense of community to become involved in leadership in the local bar associations, particularly women’s bars. It’s great to have a community in that way.

I was at a women lawyers event. When you’re going through something, you don’t necessarily appreciate it, but I was like, “I know all these people.” As we talked about on your show, I moved to LA from the Midwest having known nobody. Many of my longtime friends, colleagues, etc. resources are through that bar association. That’s a good plug.

That’s a really good thing. In general,  always learn. If you have a lifelong learning perspective, learn new things. Constantly challenge yourself and go outside your comfort zone that both expands the things you can offer and the eclectic perspectives you can have even working on a case. It also keeps you fresh and engaged.

If you have a lifelong learning perspective and a desire to constantly challenge yourself, you expand the things you can offer and keep you fresh and engaged in your work. Click To Tweet

Is that why you’ve decided to go back to school and pursue an LLM in space law?

Yes. That is part of it. I see a strong parallel between where space law is, which is somewhat developed but still very nascent. There are both international laws and national laws interacting with each other. That’s similar to the kind of skills I have as an appellate lawyer, trying to fit a case within the larger stream of the law and develop the law for clients. I have something special to add at this particular juncture of the development of the law in that area. That’s going to be an industry that’s going to be important to the world.

M.C.’s Pump-Up Song

That’s very ambitious. The last question I ask all the guests is I’m developing a playlist for the legal department. I ’ve used music throughout my life in my career to get through hard times or to get pumped up for a particular meeting, argument, etc. What is your pump-up song?

I’m going to take a little different twist on this. I know you’re like, “I want a song to add to the playlist.” I’m going to give you something a little bit different. When I work, especially on a particular case or I’m working on a brief in a particular case, because we have to go break off from case to case, in order to retain my focus for that case, I have a theme song or a theme album for that particular case or that particular brief. It is so that when I come back to it and I put the music on, it automatically brings all my pieces back for that project, not the one I was working on. It helps bring in all the scatteredness and focus. I go, “I’m back in the groove.”

M aggie Rogers who’s an amazing singer-songwriter, her song Alaska, I’ve used that one. Kanye West, I like his a lot. There’s a song Jail from his Donda album. I was working on a criminal case, so it was very fitting for that. I like some Gregorian chants from the Norbertine Fathers at St. Michael’s Abbey, which is right near me. Also, spoken word by Akira the Don. He puts spoken words together with really cool psychedelic music called meaning wave. I listen to that and Jocko Willink. It’s very motivational. That’s in the pump-up category.

That is so cool. That probably forces you to keep up with your music as well.

Exactly. I like music, so it forces me to listen, keep up with it, and get some new songs and new theme songs because you can’t reuse the one you used for another brief.

Closing Words

Each case is different. Thank you so much. If you wouldn’t mind, where can the audience find the Portia Project?

The Portia Project podcast has its own website of that name. Also, the podcast itself is on every major platform. The podcast website, hot tip, has videos of most of the interviews with the guests, including the judges. If you want to see the video, that’s the only place you can see it.

That’s awesome. I’ve been on that site many times myself. I love the show. Thank you for being on the show. I really enjoyed it.

Thank you for inviting me to the show. I appreciate it.

 

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