At least since 1938, when Sutherland founding partner Judge Elbert P. Tuttle argued in the Supreme Court of the United States to establish a Sixth Amendment right to counsel in criminal cases (in Johnson v. Zerbst, 304 U.S. 458), our lawyers have been lead appellate counsel both in cases we have tried and in cases brought to us by other counsel after trial.
Sutherland’s appellate team is distinguished by deep knowledge of our clients’ industries and the substantive law governing them, combined with extensive experience before federal and state appellate courts. During the past five years alone, we have represented clients in appeals before the Supreme Court of the United States, every federal circuit and many state appellate courts. These appeals have involved substantive areas including antitrust, bankruptcy, telecommunications, land use, energy, franchising and distribution, professional liability, intellectual property, securities law, insurance law, education, employment, class actions, construction, and real property. We are nationally recognized for our experience in federal and state tax appeals.
Many Sutherland attorneys began their legal careers as law clerks to federal and state appellate judges, adding invaluable experience and insight to their current work before these same courts. Our attorneys have clerked on the Supreme Court of the United States, every federal circuit, and the Supreme Courts of Connecticut, Florida, Georgia and Texas.
Role of Appellate Counsel in Trial Court
Sutherland’s appellate attorneys also provide valuable assistance to clients during trial court proceedings. Working closely as part of the trial team, appellate attorneys develop legal theories, draft complex motions and jury charges, ensure preservation of the record for appeal, and handle interlocutory appeals and mandamus proceedings that arise during trial court litigation. Most of our appellate attorneys are also experienced trial lawyers who bring exceptional skills to help clients win in the trial courts and on appeal.
Amicus Curiae Practice
We often submit briefs to appellate courts on behalf of amicus curiae, usually associations or groups who want their interests to be represented in precedent-setting appeals. An effective amicus brief does not simply echo or restate arguments made in briefing submitted by a party. Instead, the useful amicus brief—one likely to be considered by the court—brings the broader context and policy implications of the decision at hand to the court’s attention. The “Brandeis Brief,” which presents economic and other social science data bearing on an issue before the court, is the prototype. A strong understanding of our clients’ businesses and industries enables us to identify key policy issues and arguments for influential amicus curiae briefs.
Appellate Spotlight: Bullock v. BankChampaign, N.A., 133 S. Ct. 1754 (2013)
In Bullock v. BankChampaign, N.A., the Supreme Court of the United States agreed with our client’s interpretation of the term “defalcation” found among the exceptions to bankruptcy discharge. In ruling for our client, the Court rejected the holdings of all of the lower courts and the contrary arguments of, among others, the U.S. Solicitor General.
Our client Randy Bullock had been the trustee of a life insurance trust established by his father. Initially, at the direction of his father, Randy made loans from the trust to his mother and to a business in which Randy had an interest, and he made similar loans later, all of which were repaid to the trust with interest. Other beneficiaries of the trust contended, however, that these loans constituted self-dealing. A state court in Illinois agreed, entering a judgment against Randy for breach of fiduciary duty for more than $250,000.
Years later, Randy sought to discharge this debt through a Chapter 7 bankruptcy filing in Alabama. But the bankruptcy judge ruled that no discharge was available because the self-dealing constituted “defalcation,” an exception to discharge under the Bankruptcy Code. The district court and the U.S. Court of Appeals for the Eleventh Circuit, noting a circuit split on the definition of defalcation, agreed and affirmed.
The case was brought to us after the Eleventh Circuit’s decision by the Emory Law School Supreme Court Advocacy Program. Working with the Emory students, we prepared and filed a petition for certiorari, which the Supreme Court granted. The case became even more challenging when the Solicitor General of the United States weighed in to support BankChampaign, the successor trustee, arguing that the defalcation exception to discharge should apply. To that point, the Solicitor General had been on the winning side of 13 consecutive bankruptcy cases in the Supreme Court. Fourteen bankruptcy professors also filed a brief in support of the Bank’s position. The briefing featured case law and historical background going back to the 1830s. After oral argument, the Supreme Court ultimately ruled 9-0 in our client’s favor, holding that the undefined term “defalcation” in the Bankruptcy Code, like the terms “larceny” and “embezzlement,” which appear close beside it, includes a culpable state of mind requirement. The Court remanded for further proceedings, and the case was resolved on remand with Randy obtaining his discharge.
Our partner who argued the case, Thomas M. Byrne, was named “Appellate Litigator of the Week” by the National Law Journal.