By Cynthia Price
Legal News
Attorneys who use the services of Warner Norcross and Judd’s new Appellate Practice Academy will avail themselves not only of the broad expertise within that firm, but also of the experience of an impressive group of former judges and justices.
The academy will prepare lawyers from any firm, statewide and even region-wide, to face the challenges of arguing in appeals courts, using a moot court approach.
“So far as we can find out, this is really unique; there’s nothing else like it in the Upper Midwest,” says John Bursch, co-chair of Warner Norcross’s Appellate Practice Group and a former Solicitor General for the State of Michigan. “As a practice group, it’s very important to us to stay in front of the curve, to do things that are groundbreaking.”
Bursch has argued before the U.S. Supreme Court eight times and before the Michigan Supreme Court 18 times. He has won the WMU-Cooley Law School Distinguished Brief Award, the National Association of Attorneys General Best Brief Award for U.S. Supreme Court advocacy three times, and the Distinguished Brief Award for Michigan Supreme Court advocacy — the only person ever to win that award four times.
As Michigan Solicitor-General from 2011 to 2013, Bursch argued over 6% of the cases heard during that period by the U.S. Supreme Court, and the National Law Journal wrote that his record was something “even more veteran high court advocates would envy.”
Bursch also publishes widely, including as principal author of the Michigan Supreme Court’s Guide for Counsel; comments about Supreme Court cases for national media outlets; and started Warner Norcross’s One Court of Justice blog (www.ocjblog.com), which offers “comprehensive coverage of the Michigan Supreme Court and the Michigan Court of Appeals.”
The other Appellate Practice Group co-chair, Matthew Nelson, is coordinating logistics for the academy. “I have been taking a lead in terms of scheduling, and I’m the person most people will be in contact with,” he says.
Nelson, too, has wide experience in appellate work, and has received the Michigan Distinguished Brief Award twice. He has submitted a number of amicus curiae briefs on behalf of the State of Michigan, the Defense Research Institute, the Michigan Defense Trial Counsel, and others. Nelson argued before the U.S. Supreme Court on a case considering whether an individual could challenge a government decision to take land for eventual use as a tribal casino, and prevailed for his client. He has also argued a number of cases in federal circuit courts of appeals.
He blogs frequently on the One Court for Justice blog about Michigan Supreme Court matters.
A third key member of the Appellate Academy team is Gaetan Gerville-Réache, also a highly successful and experienced appellate litigator.
Gerville-Réache’s expertise is reflected by his many publications as both an editor and writer. He is the co-editor of the Michigan Appellate Handbook published by the Institute for Continuing Legal Education, and contributed chapters to the book, as did Bursch and Nelson. He is also a co-author, with Bursch, of The Insider's Guide to the Michigan Appellate Courts, an updated version of a chapter they wrote in the Council of Appellate Lawyers Appellate Practice Compendium, published by the American Bar Association.
Other Warner Norcross attorneys will serve on panels for the academy as well, but that is only the beginning.
The team has secured the participation of some well-respected judges and justices with decades of expertise.
“We know the judges well because we’ve spent so much time in front of the courts, so we asked them,” says Bursch. “They range the spectrum with respect to judicial philosophy, and you want that kind of diversity on your moot panel just as it would be on a court.”
Nelson adds, “We had a situation where there were a lot of judges and justices coming off the bench, so we reached out to them and pitched this idea. We’ve been doing it for years internally, and we think it’s of incredible value, and the judges agreed. There are a couple who have just by themselves decided thousands of appellate cases. They’ve seen every kind of argument, every style of advocate —?to have that kind of experience working in our favor is priceless.”
Two former Michigan Supreme Court (MSC) Justices have agreed to be part of the academy. The Hon. Michael F. Cavanagh has recently retired after 32 years of experience, including serving as chief justice. In addition to community involvement educating the public on the workings of the MSC, Justice Cavanagh wrote more than 500 opinions, participating in more than 2000 cases. Prior to the MSC, he served as a Michigan Court of Appeals Judge for eight years.
The second former MSC Justice is The Hon. Alton Thomas Davis, who was defeated in the 2010 elections after serving since August of that year as a gubernatorial appointee. He was on the Court of Appeals for five years before that, and a circuit court judge in Crawford/Kalkaska/Otsego Counties from 1985 to 2005. He has decided thousands of cases.
The Hon. Richard A. Bandstra will also serve on the Appellate Academy panels. Judge Bandstra was formerly a Michigan Court of Appeals judge, an elected member of the Michigan House of Representatives, and chief legal counsel to Michigan Attorney General Bill Schuette. He was elected to the COA?in 1994 and served there until his retirement in Jan. 2011.
His 16-year COA career is just slightly exceeded by the 17 years of The Hon. William Whitbeck, who retired at the end of 2014 and will also join the academy. Before that, Judge Whitbeck was the administrator of various departments for three Michigan governors, including the administrative assistant to Gov. George Romney, and held leadership positions in the U.S. Department of Housing and Urban Development. He is also an author and a former columnnist for the Grand Rapids Legal News.
Additional panelists will include professors from WMU-Cooley Law School, to include Devin Schindler who has much experience arguing at the appellate level, and from other Michigan law schools.
The procedure the academy will follow is: attorneys will argue before the assembled panels just as they would before the appellate courts, and the panelists will question them just as the judiciary would in a real COA or MSC appearance. After that, the panelists will offer a brief critique of the arguments and the way they were argued.
The panelists will do their best to reproduce the nuances particular to each type of case. For example, Bursch says, “The Court of Appeals is limited to the recorded created in the trial court, so there will be different kinds of questions than at the Supreme Court. The issue of what is the standard of review is critical.”
“We try to prepare them for all different levels of skepticism,” Nelson adds.
The academy will also help lawyers hone their arguments and be succinct. Gerville-Réache says, “You only have 15 minutes or so, not more than a half hour, to make a point, so whenever you’re asked a question, you need to have a very short and precise answer ready so you can get back to your own points.”
There will be a charge for the academy, but there is already testimony that it is more than worthwhile.
Andrew Rodenhouse of Rodenhouse Kuipers, P.C., argued before the academy’s moot court in preparation for his MSC case People v. Leo Ackley. When Rodenhouse appeared before MSC on Tuesday, he arrived early to see the other cases argued. He said he was surprised at how well-prepared and confident he felt; he received many compliments on his performance from court observers.
He comments, “The WNJ Moot Court academy was incredibly helpful from a number of standpoints. First, as this was my first appearance before the MSC, I didn't know what I didn't know. The Moot Court panel took their time to inform me of the correct practice and procedure before the MSC. They also helped hone my argument, showing both the strength and weakness of my argument, as well as what I needed to be prepared for from the court... I cannot say enough great things about the... academy. I know that my client is the one who ultimately benefited from this training.”
Venues for the academy are available throughout the state and include Warner Norcross offices as well as law school locations. To arrange to participate, contact Matt Nelson at 616-752-2539 or mnelson@wnjcom.
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