Robinson & Cole’s Appellate Unit ()
It’s a trend that Robinson & Cole partner Jeffrey White has noticed over the past 10 years. Larger firms outside of the appellate hub of Washington, D.C., have been focusing on building up teams of appellate lawyers to show their depth and expertise.
When White looked at Robinson & Cole’s ranks, he saw every reason to believe that the AmLaw 200 firm could follow suit and create a powerful Connecticut-based appellate group equipped to handle cases in courts throughout the country.
It’s not as simple as cobbling together lawyers who have handled some appeals, White said. A strong group must be dedicated to understanding various rules of appellate procedure, knowing the appellate judges and writing incisive briefs that address those judges’ concerns.
“We knew we had the people in place and we wanted to implement a teamlike attitude among appellate lawyers,” said White, who took over as chairman of the firm’s 12-lawyer appellate group at the beginning of 2013, leading seven other partners/counsel and five associates. “We insist they all dedicate some time to being an appellate lawyer. We want people who are focused on the rules of appellate procedure, know the judges, know how to write briefs and have them work together efficiently.”
So far, so good. Robinson & Cole’s appellate group delivered many impressive performances during 2013, taking a key case to the U.S. Supreme Court. As a result, the firm has won the Connecticut Law Tribune’s Litigation Departments of the Year Award in the appellate law category.
The showcase appeal from 2013 involved The Standard Fire Insurance Co., a subsidiary of Travelers Companies, which was represented by partners Wystan Ackerman and Stephen Goldman. Plaintiff Greg Knowles filed a class action in Miller County, Ark., against Standard Fire, alleging that the insurer failed to pay contractor fees on certain homeowners’ insurance claims following damage from a 2010 hailstorm.
Ackerman and Goldman knew insurance companies had been forced into high-dollar settlements in the Arkansas court, and they were interested in moving the case to federal courts under the Class Action Fairness Act (CAFA) of 2005. The law states that any class action dispute filed against a corporation and involving more than $5 million must go to federal court, which then scrutinizes the claim. In federal court, Knowles argued that he could potentially seek less than $5 million for the class, and so the federal court sent the case back to the Arkansas court system.
The U.S. Court of Appeals for the Eighth Circuit refused to hear their appeal, so Ackerman and Goldman petitioned the U.S. Supreme Court, which had denied certiorari on the issue in a separate case in 2011. “We took a flyer on the Supreme Court,” Ackerman said. “It’s a case that Travelers really wanted in federal court,” where the law provided the company more protection.
The Supreme Court granted Ackerman and Goldman’s petition in August 2012 as the first case the high court reviewed involving CAFA. The Robinson & Cole duo continued working on the case, assisted by high-profile Los Angeles constitutional lawyer Theodore Boutrous Jr., who presented the arguments to the Supreme Court.
Boutrous and the Robinson & Cole lawyers argued that Knowles had no authority to limit an entire class’s claims to less than $5 million in damages before the class was certified and before Knowles was determined to be an adequate representative of the class. In Standard Fire Insurance v. Knowles, the Supreme Court justices in 2013 decided unanimously that the case belonged in federal court.
“Having the argument we came up with be espoused by the U.S. Supreme Court unanimously, it was a tremendous experience,” Ackerman said. “It has elevated our profile as an appellate firm, and it’s something that has helped us expand our class-action practice in the insurance industry especially. Client relationships have grown or have started on the basis of Knowles.”
Linda Morkan, who dedicates her practice to appellate work, said existing and potential clients are recognizing Robinson & Cole as having a deep appellate group with nationwide experience.
“And they like the familiarity and credibility we have with the courts,” said Morkan, cochairwoman of the Connecticut Bar Association’s Appellate Advocacy Section. “When a judge is familiar with you and your approach, there’s a level of confidence in the information you’re sharing that goes a long way to help you win the case.”
Morkan has been an appellate lawyer at the firm for 25 years and handles about a dozen cases per year. Her experience stretches from various state appellate courts up to the U.S. Supreme Court.
“Most trial lawyers used to handle their own appeals, but I have seen a major sea change as lawyers have become more focused on particular areas,” she said. “Clients are calling for people with specific skills needed to prevail in an appeal, dealing with discrete rules and discrete judges. It’s a different skill set.”
Morkan’s 2013 appeals covered a range of topics.
In Frank v. Reassure Life Insurance, Morkan ended up in the U.S. Court of Appeals for the Second Circuit analyzing a case that involved a spouse suing for lifetime benefits following her husband’s death. The husband had contracted Alzheimer’s disease and the insurance company was paying out only partial benefits, per the insurer’s interpretation of the policy coverage. The plaintiffs wanted full benefits.
Morkan, representing the insurer, prevailed in district court and by summary judgment in the Second Circuit. “It was a very sad case. Our job there was to argue that the policy provided [only] what the policy provided.”
Several of Morkan’s appeals ended with victories in the Connecticut Appellate Court. In DDS Wireless International v. Nutmeg Leasing, Morkan represented the wireless provider in a dispute with a company that had signed a contract to use mobile services allowing dispatchers to communicate with drivers. With nine months remaining on a five-year contract, Nutmeg Leasing canceled its service and refused to pay any more money because the communications system malfunctioned too often.
Nutmeg Leasing prevailed at trial, arguing that malfunctions created a special instance allowing it to back out of the contract without honoring termination fees or any other associated costs, known as “frustration of purpose” in contract law.
“We wrote a black-letter treatise about this and why it didn’t apply in this case,” Morkan said, which led to an Appellate Court victory for DDS Wireless. “Our client said, ‘We can’t have people just dropping out of their service contracts.’ Often in appeals, the client is choosing to appeal on principles that are bigger than the case itself.”
Two other Appellate Court cases handled by Morkan resulted in the court affirming judgments in her client’s favor. In Silicon Valley Bank v. Miracle Faith World Outreach, she successfully represented a bank that had foreclosed on a church that owed nearly $1.7 million. In Callender v. Reflexite, Morkan represented a company that was sued by a female employee who complained that her job was eliminated after she filed several workers’ compensation claims. Morkan successfully argued there was no retaliation involved, but the firm had simply phased out some jobs after moving some operations out of Connecticut.
Morkan and her colleagues’ wide-ranging appellate case experience in 2013 highlights the objectives White has put in place as chairman of the group: Take advantage of each other’s appellate expertise, be dedicated to the work and find opportunities everywhere.
“We can say we handle appeals in any court in the country and it’s not lip service,” White said. “We’re certainly very proud of this.” •