If At First You Don't Succeed

April 27, 2008
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GRAND RAPIDS — A local auto dealership protests a use tax imposed on cars that employees drive during working hours.

A building supply company seeks to block 401(k) account access for an employee who perpetrated an embezzlement scheme.

If a doctor says a restaurant-goer’s respiratory distress was caused by a “cleaning solution” being sprayed on the carpet during the meal, and the solution was actually intended to prevent stains, can the customer sue?

And is a “document preparation fee” charged to a mortgage customer fair or should the question be ignored because of the timing of the court case?

These lawsuits that originated in Kent County Circuit Court found their way into the legal appeals system over the past three years, where judges review the law, previous court cases and the facts to either uphold an earlier decision or change it.

Businesses can help craft their operating environments with strategic decisions about pursuing legal cases into appellate courts, said Warner Norcross & Judd partner John Bursch, chair of the 14-member appellate practice group at the Grand Rapids law firm.

“I recommend to all of my business clients that they consult with me following the resolution of a trial court matter … to determine, legally, and from a business standpoint, whether it makes sense to pursue an appeal,” Bursch said.

From 9 a.m. to 1 p.m. May 7 and 28, the Court of Appeals is hosting an attorney seminar called “Successful Practice in the Court of Appeals” at the State of Michigan Office Building, 350 Ottawa Ave. NW. The seminar, with a $10 fee, covers filing timely and complete appeals, writing briefs and motions and avoiding pitfalls. Registration is available at the Michigan Court of Appeals Web site, www.courtofappeals.mijud.net

Everyone has the right to appeal a Circuit Court decision, Bursch explained. Today’s appeals system, established in the state constitution in the 1960s, was expanded to 28 judges who handle about 8,000 cases annually. However, once a case moves beyond the appeals court level, the supreme courts have discretion to decide whether to consider it.

“In general, (the Michigan Supreme Court) would grant about 5 percent of those applications per year,” said Bursch, who clerked at the U.S. Court of Appeals, Eighth Circuit. “The rest of the cases, the court decides not to hear. Less than 1 percent of those petitions are granted by the U.S. Supreme Court, so more than 99 percent of federal appeals court decisions stand.”

That makes the decision to appeal, particularly in federal court matters, an important one, Bursch said.

“In the intermediate courts, the focus is very much on the merits of your case,” he said, while the higher courts pick cases that have significance in terms of legal precedent or public interest and impact.

“The best cases are those where the case was resolved on a legal issue as opposed to a factual issue,” he said.

Among other points to consider when deciding whether to appeal are the identity of the trial court judge and his or her reputation with Court of Appeals judges, and the amount of detail in the trial court opinion.

“How widespread is the effect and the ability of the company to shape the law here in Michigan?” Bursch added. “There are both legal issues and strategic business issues.”

Also, the issue could be important to the company, but the facts of the case may not be strong enough to lead to a court opinion the firm prefers, he said. “It could come out the other way,” he noted.

Bursch said that more and more often, his firm is involved writing amicus curiae briefs on behalf of professional organizations that have an interest in an issue before the Court of Appeals or the Supreme Court.

“Where you want to establish a legal precedent of significant benefit to your business or industry in the future, it’s fairly common to approach an association with an interest aligned with your industry,” Bursch said.

“In some ways, filing these amicus briefs is a more effective way to change the law for industry than lobbying. You never know if the Legislature is going to pass a law, but you know the Michigan Supreme Court will issue a ruling.”

He said the use of “friend of the court” briefs is growing at the state level, and at times judges even request them. At the federal level, every Supreme Court case has at least one and sometimes 20 to 30, he added.

Bursch’s business clients have included Alticor, BorgWarner, Consumers Energy, DTE Energy, Meridian Automotive, Plastech Engineered Products, Robert Bosch Corp., Spartan Stores, Wells Fargo Financial Leasing and Whirlpool.

And how did the cases listed above — none of which involved Bursch — turn out?

**The dealership was exempted from the use tax for up to 25 cars.

**The scofflaw employee was allowed access to his 401(k) under federal law.

**The doctor’s mistake let the carpet cleaners off the hook.

**Timing ruled, and the class-action case on the mortgage fee couldn’t be tried.

“I really enjoy the process of writing appellate briefs and presenting oral arguments,” said Bursch, who has participated in supporting and leading appeals not only in the Michigan Court of Appeals and state Supreme Court, but in federal appeals courts and the U.S. Supreme Court.

“Those (skills) go to the core of a lawyer’s craft and ability to persuade a judge with logic and legal argument. To be involved in cases where the stakes are the highest in terms of money and legal precedent and high profile is very exciting.” 

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