Appellate Practice

McAfee & Taft’s appellate attorneys possess the knowledge, experience and analytical, rhetorical and writing skills necessary to win on appeal. We are highly experienced litigators who have a track record of successfully transferring out extensive trial court experience and talents into appellate court victories.

Our firm has fared well in protecting on appeal a good result achieved by another firm in the trial court, or in getting a bad result reversed. For example:

• Entering the case at the appellate stage in an action tried by another firm, we won reversal of a $4.7 million judgment in a preferential right of purchase dispute by showing that the trial court had failed to properly instruct the jury.
• In another case tried by another firm, we obtained an affirmance on appeal of the trial court’s rejection of plaintiff’s attempt to pierce the company’s corporate veil and hold its principal liable for personal injuries sustained by the plaintiff.
• We are currently handling an appeal in which we are seeking the reversal of an Oklahoma state trial court’s decision that Oklahoma’s “no pay, no play” statute is unconstitutional, in a case handled by another firm in the trial court.

On several occasions, our firm has been engaged to enter a case at the post-trial stage in the trial court and continue with the representation on appeal. We have had uncommon success on these occasions. For example:

• Entering the case at the trial stage after the jury had returned a $700,000 verdict against a national manufacturing concern on plaintiff’s tort claim and claim for punitive damages in a distributorship termination dispute, we succeeded in obtaining from the trial court a judgment overturning the jury’s verdict on these claims, and successfully defended the trial court’s judgment on appeal.
• In a federal court case in which the jury had returned a substantial verdict against a major insurance company accused of bad faith in the handling of an uninsured motorist claim, we entered the case for the insurance company at the post-trial stage and succeeded with our motion for summary judgment as a matter of law in obtaining the trial court’s reversal of the jury verdict and successfully defended the trial court’s judgment on appeal.
• Being engaged at the post-trial stage by the owner of assisted living facilities in several states to represent its Oklahoma City affiliate against which the jury had returned a substantial verdict in a wrongful death action, our preparation and argument of post-trial motions resulted in a favorable settlement in lieu of an appeal.

A different call on our appellate expertise involved our recent retention by a prominent out-of-state firm to review the record in a federal district court trial involving complex disputes and to evaluate the chances of the district court’s judgment being reversed on appeal.

Further, we have been engaged by trade associations and similar groups to appear in cases as amicus curiae (friend of the court) to get our client’s views on an important matter before the court in a case in which it was not a party.

Our Skilled Attorneys

Our appellate attorneys have that eye for detail, combined with a thorough knowledge of appellate procedures, necessary to identify and prevent appellate errors during trial, to comb a post-trial record in search of reversible errors to raise on appeal, or to defend a successful trial on appeal. Several of our appellate attorneys have served as law clerks to appellate court judges and supreme court justices before entering private practice. With this extensive knowledge, talent and experience, our appellate lawyers work to avoid the traps that exist in practice before the appellate courts by taking a proactive approach to presenting issues during pre-trial and trial, preserving errors during trial and in post-trial motion practice, and navigating intricate appellate rules and procedures.

Our appellate attorneys have that eye for detail, combined with a thorough knowledge of appellate procedures, necessary to identify and prevent appellate errors during trial, to comb a post-trial record in search of reversible errors to raise on appeal, or to defend a successful trial on appeal. Several of our appellate attorneys have served as law clerks to appellate court judges and supreme court justices before entering private practice. With this extensive knowledge, talent and experience, our appellate lawyers work to avoid the traps that exist in practice before the appellate courts by taking a proactive approach to presenting issues during pre-trial and trial, preserving errors during trial and in post-trial motion practice, and navigating intricate appellate rules and procedures.

Lawyers in the firm are admitted to practice in the U.S. Supreme Court and all federal circuit courts of appeal, the U.S. Court of Claims, the U.S. Tax Court, the U.S. Court of Appeals for the Armed Forces, and numerous federal district courts and state courts.

In addition, a number of McAfee & Taft attorneys have served as law clerks and judicial interns to judges, appellate court judges and supreme court justices before entering private practice. This includes eight federal appellate clerks and three federal district clerks. Leveraging our combined insight, knowledge, talent and experience, our appellate lawyers work to avoid the pitfalls that exist in practice before the appellate courts.

In addition to representing our clients in appeals, our practice area includes the following:

Protecting the Appeal at the Trial Court Level

McAfee & Taft’s appellate practice is not limited to the traditional work in appellate courts. Our appellate lawyers are available to assist clients and other attorneys at all stages of a case. We team with trial counsel, whether from McAfee & Taft or another firm, to provide litigation support by drafting and arguing dispositive motions, motions to limit or exclude expert opinion testimony, motions in limine, directed verdict motions, proposing jury instructions and verdict forms, and post-trial motions. In addition, our appellate lawyers are available to attend trials to assist in identifying and preserving errors for appellate review and are also experienced at seeking and prosecuting interlocutory appeals and seeking mandamus relief.

Substitute or Assistant Appellate Counsel

Our appellate lawyers have succeeded in working effectively with the lawyers who tried the case to assure a smooth transition, whether the case was lost – or won – in the trial court. On several occasions, we have found that taking a fresh look at a case tried by another firm brings a new perspective on how to identify and frame arguments to win on appeal. And we have had remarkable success in taking the lead in seeking post-trial relief in the trial court itself – from winning a substantial reduction in the attorneys’ fees sought by the prevailing party, to inducing an attractive settlement offer, and, in some instances, vacating an adverse jury verdict, winning a motion for new trial, and obtaining a judgment notwithstanding the verdict.

Rehearing on Appeal

Motions for rehearing, rehearing en banc, and petitions for certiorari are rarely granted and require specialized expertise. McAfee & Taft’s appellate lawyers are available to help clients and other attorneys navigate the complexities of these extraordinary appellate procedures.

Amicus Support

Carefully selected amicus curiae (“friend of the court”) support can often provide a tipping point in a case. Persons, entities and associations or representative bodies are often unaware that they can express their position on an important issue even if they are not parties to the lawsuit through an amicus curiae brief. Litigants should likewise consider enlisting amicus support on their side in appeals involving important issues. Although amicus briefs are usually filed in appellate or supreme court cases along with the parties’ briefing on the merits, an amicus brief can be filed in trial court proceedings, or in support of requests for rehearing or petitions for certiorari. McAfee & Taft is available to assist clients in obtaining amicus support at all levels and in all phases of litigation.

REPRESENTATIVE EXPERIENCE

A representative sampling of the victories achieved by our appellate lawyers, by subject matter, include:

Administrative Law

• Persuaded the 10th Circuit Court of Appeals to overturn an agency action of the U.S. Department of Housing and Urban Development as being arbitrary and capricious.
• Obtained an Oklahoma Supreme Court decision rejecting the Oklahoma Tax Commission’s narrowly drawn regulations as to the scope of the “manufacturer’s exemption” from sales taxes.
• Obtained affirmance of hospital board’s revocation of physician’s hospital privileges, vindicating board discretion and adherence to its procedural rules.

Agriculture

• Represented a group of landowners in appeal of an order holding that a rural water district lacked an objectively reasonable basis under federal law to remove a matter before the county commissioners to federal court and received decision from the 10th Circuit Court of Appeals affirming the order.
• Represented farmers in administrative appeals before the National Appeals Division (NAD) of the United States Department of Agriculture (USDA). Obtained findings that the Risk Management Agency (RMA) which administers the federal crop insurance program cannot utilize unofficial, unpublished National Agricultural Statistics Service (NASS) data or its own internal data to determine payments under Group Risk Income Protection (GRIP) policies.
• Represented 24 Colorado corn farmers in a NAD appeal in connection with their GRIP policies. Established that RMA’s arbitrary and capricious actions improperly lowered indemnities due to every GRIP policyholder in the county. The decision led to a group recovery of more than $1 million.
• Represented a group of Arizona farmers in a NAD appeal regarding their multi-peril crop insurance (MPCI) policies. On appeal, the farmers contended that the RMA bulletin constituted retroactive rulemaking and erroneously modified the terms of their policy. The NAD Hearing Officer agreed and held the application of the bulletin improperly created a new retroactive procedure.
• Represented a group of more than 90 Texas corn farmers in a NAD appeal with respect to an adverse decision by RMA pertaining to their GRIP policies. The farmers contended that the RMA’s adjustment of yields published by the NASS was arbitrary. The NAD Director found RMA’s actions were arbitrary and capricious which resulted in a recovery of more than $3 million to the group.

Arbitration

• Obtained affirmation from the 5th Circuit Court of Appeals that an arbitration clause in client’s franchise agreement was valid.

Aviation

• Obtained summary judgment for defendant company and successfully defended it on appeal to the Oklahoma Supreme Court, where the crash of the company’s airplane resulted in its employee’s death. The court refused to expand its “Parret exception” to the exclusive remedy provided by the Workers’ Compensation Act so as to bring anything other than conduct substantially certain to cause death or injury within the exception. In addition, the court held that federal aviation regulations did not preempt the Oklahoma Workers’ Compensation Act.

Banking

• Obtained 10th Circuit Court of Appeals affirmance of summary judgment granted in favor of bank in suit seeking to impose lender liability.
• Won reversal in the Oklahoma Supreme Court of lender liability judgment against bank.
• Won reversal in the Oklahoma Court of Civil Appeals of lender liability judgment against bank.

Business Litigation

• Entered case at post-trial motion stage in distributorship termination dispute and obtained judgment notwithstanding the verdict overturning jury’s award of $700,000 on distributor’s tort claim and claim for punitive damages, and successfully defended the judgment nothwithstanding the verdict on appeal.
• Engaged as appellate counsel in a case tried by another firm involving trial court’s rejection of plaintiff’s efforts to pierce the corporate veil of defendant company, and obtained affirmance of trial court’s decision.
• Won reversal of district court’s denial of electric cooperative’s request that its competitor, a public utility company, be enjoined from providing electric service to residents of city on basis of permit issued by city’s governing body rather than having obtained a voter-approved franchise, with instructions to district court on remand to grant the injunction.
• Obtained affirmance by Texas Court of Appeals of summary judgment in favor of defendants in action brought under Texas Fraudulent Transfer Act involving a business acquisition and subsequent sales of assets.
• Represented commercial landlord in appeal of order awarding lease damages, costs and attorney’s fees against tenant for breach of its commercial lease agreement and obtained decision affirming judgment.
• Represented trustee of a trust in appeal of an order denying beneficiary’s attempt to remove trustee and challenging payment of trustee fees and attorney’s fees. Trial court’s decision in favor of trustee was affirmed.

Construction Law

• Obtained affirmance by the 10th Circuit Court of Appeals of summary judgment in favor of general contractor upholding validity of “pay-if-paid” clause in contract with subcontractor, i.e., clause requiring general contractor to pay subcontractor for its work only if the general contractor is first paid on its contract with the project owner.

Daubert Standards

• Persuaded the Oklahoma Supreme Court, in Christian v. Gray, 2003 OK 10, 65 P.3d 591, to adopt the Daubert standards for expert witnesses, paving the way for Oklahoma state courts to apply the Daubertline of cases in Oklahoma civil proceedings.
• Won affirmance in the Oklahoma Court of Civil Appeals of the trial court’s application of the Daubertstandards in admitting expert testimony in suit involving the COPAS accounting procedure exhibit to an oil and gas joint operating agreement.

Directors and Officers Liability

• Won 10th Circuit Court of Appeals affirmance of judgment for client against insurance companies in directors and officers coverage dispute.

Employment Law

• Successful in appeal before the 10th Circuit Court of Appeals in suit based on public policy tort claim brought by former employee of a major airline.
• Successful in representing insurance company on appeal before the Oklahoma Supreme Court in enforcing non-compete clause in contract with former employee.
• Successful in appellate attack on arbitration award against cardiovascular surgeon by persuading Oklahoma Supreme Court to set aside award on grounds that non-competition provision in surgeon’s employment agreement violated Oklahoma restraint of trade statute.

ERISA

• Represented amicus curiae at the appellate level in seeking a writ of certiorari, and at the U.S. Supreme Court level in a seminal case on the issue of ERISA subrogation.
• Obtained 10th Circuit Court of Appeals affirmance on the issue of ERISA pre-emption of state law, settling conflicting published district court opinions.
• Succeeded in obtaining an 8th Circuit Court of Appeals decision that an employer did not have a duty to disclose certain documents to a participant in a fully-insured plan.

Healthcare Law

• Obtained a highly favorable settlement for the defendant assisted living facility in wrongful death action, following entry into the case at the post-trial motion stage.
• Successfully represented a major hospital in an appeal before the Oklahoma Supreme Court in suit to collect prisoner medical bills.
• Won 10th Circuit Court of Appeals affirmance of dismissal of hospital client in a false claims action.

Insurance Defense

• Obtained reversal of adverse jury verdict of $700,000 in actual and punitive damages on post-trial motion for judgment as a matter of law on behalf of a major insurance company accused of bad faith in handling an uninsured motorist claim. Decision affirmed upon appeal to the 10th Circuit Court of Appeals.

Intellectual Property Law

• Prevailed in an appeal to the Federal Circuit involving infringement of our client’s guiding heart catheter patent and affirming jury award of damages in excess of $14 million.
• Obtained affirmance from the Federal Circuit of jury verdict finding patent valid and awarding damages to manufacturer of industrial equipment.
• Obtained affirmance of jury finding of invalidity of patent on behalf of alleged infringer.

Native American Law

• Successfully represented numerous amici curiae, including Oklahoma Farm Bureau, Oklahoma Association of Electric Cooperatives, and Oklahoma State Chamber of Commerce and Industry in filing an amici curiae brief in a case before the Tenth Circuit, wherein the court held that the Osage Nation’s reservation had been disestablished.

Oil and Gas

• Won reversal of a $4.7 million judgment in an oil and gas joint operating agreement preferential right of purchase dispute by showing that the trial court had failed to properly instruct the jury.
• Succeeded in obtaining Oklahoma Supreme Court writ of certiorari to the Oklahoma Court of Civil Appeals to review affirmance of summary judgment construing assignment of oil and gas lease as having assigned all rights rather than being a borehole assignment only.
• Obtained appellate reversal of Oklahoma Tax Commission order denying sales tax exemption to well site processing of oil and gas.

Products Liability

• Successfully represented a manufacturer of consumer products in an appeal before the Delaware Supreme Court in a lawsuit involving products liability claims.
• Won a reversal of an order granting a new trial and obtained reinstatement of a defendant’s verdict in a multi-million dollar products liability case involving downhole oil and gas well equipment.
• Succeeded in persuading the 10th Circuit Court of Appeals to affirm summary judgment for the defendant in a manufacturer’s products liability case in which the plaintiff alleged that the tractor was unreasonably dangerous without a rollover protective structure (“ROPS”).

Securities Law

• Successfully defended the appeal in which the 10th Circuit Court of Appeals established the scienter pleading standard for alleged violation of federal securities laws.
• Won affirmance in 10th Circuit Court of Appeals of dismissal of a securities class action against client.

Religious Institutions

• Obtained affirmance by the Oklahoma Supreme Court for a religious institution on First Amendment grounds.
• Succeeded in obtaining an Oklahoma Court of Civil Appeals decision that a church and its pastor were not liable for alleged defamation for remarks made to a church member about a church employee.

Tort Liability

• Successful in obtaining affirmance by Court of Civil Appeals, and denial of certiorari by Oklahoma Supreme Court, of trial court’s rejection of plaintiff’s attempt to impose liability on cell phone retailer based on defendant automobile driver’s using a cell phone at the time of the accident.
• Won affirmance in Oklahoma Supreme Court of summary judgment granted in favor of client in fraud/breach of fiduciary case brought against client.