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Appellate

The attorneys in Balch & Bingham LLP’s Appellate Practice Group have argued and won in numerous federal and state post-judgment proceedings and appeals involving punitive damages, class actions, challenges to agency actions, and constitutional issues. The Appellate Practice Group’s attorneys offer decades of experience in briefing, arguing, and winning appeals. From unwinding default judgments to filing amicus briefs to providing confidential assessments of cases to arguing appeals on the merits, Balch & Bingham’s Appellate Practice Group offers a broad array of appellate services. Representative clients and briefs from a sample of our cases are provided below.

ATTORNEYS                       BRIEFS & OPINIONS
CLIENTS  ALABAMA APPELLATE DECISIONS &  SUMMARIES
SERVICES   11TH CIRCUIT DECISIONS

ATTORNEYS

Balch & Bingham’s attorneys bring a wealth of experience and talent to the appellate practice area. These attributes have led to Balch & Bingham’s selection by Exxon Mobil Corporation to serve on the team of attorneys defending that company against the largest punitive damages verdict in the history of Alabama. The Supreme Court of Alabama also requested Balch & Bingham to advise the Court as amicus on the constitutionality of an industrial development bond issue. The United States Court of Appeals for the Eleventh Circuit regularly appoints members of Balch & Bingham’s Appellate Practice Group to brief and argue criminal appeals. Numerous corporations, state agencies, and individuals have selected the firm to defend them in appeals in state and federal courts.

  • David R. Boyd has more than 30 years of litigation experience. His practice includes the representation of numerous corporate, governmental, and individual clients in state and federal courts. Mr. Boyd has represented parties or amici in more than 125 state and federal appellate cases involving a wide range of subject matters. He successfully argued for the reversal of the $3.4 billion award in Exxon Mobil Corporation v. Department of Conservation & Natural Resources, 859 So. 2d 1096 (Ala. 2002); to uphold the State of Alabama’s judicial election system against a Voting Rights Act challenge, Southern Christian Leadership Conference v. Sessions, 56 F.3d 1281 (11th Cir. 1995) (en banc); and for a public university in landmark cases involving student due process and interpretation of Alabama’s open meetings law, Nash v. Auburn University, 812 F.2d 655 (11th Cir. 1987), and Auburn University v. Advertiser Co., 867 So. 2d 293 (Ala. 2003), respectively. Early in his career, Mr. Boyd argued successfully in the Alabama Supreme Court against the Legislature’s unauthorized attempt to replace the state constitution, State v. Manley, 441 So. 2d 864 (Ala. 1983). Other representative appellate matters in which Mr. Boyd has been heavily involved include Tom’s Foods, Inc. v. Carn, 896 So. 2d 443 (Ala. 2004) (lead appellate counsel in reversing multi-million dollar award based on alleged tortious interference with business relation), and Roberts v. Alabama Power Co., 404 So. 2d 629 (Ala. 1981) (establishing the applicability of the business judgment rule to shareholder derivative actions). He has also represented Auburn University for many years in the landmark Knight v. Alabama college desegregation case, which resulted in several trials and appeals, e.g., 14 F.3d 1534 (11th Cir. 1994). Mr. Boyd has served on the State Bar’s Supreme Court liaison committee and has also appeared before the Court in its rulemaking capacity in connection with bar admissions matters.
  • Michael L. Edwards has more than 40 years of litigation experience. He has represented financial institutions, health care providers, accounting firms, manufacturing, mining and energy companies, as well as individuals. He successfully argued for the reversal of an order certifying breach of contract and fraudulent suppression claims regarding the order in which a bank posted customers’ checks in Compass Bank v. Snow, 823 So. 2d 667 (Ala. 2001). He also successfully argued that a summary judgment in fee disputes between attorneys should be reversed in Prince v. Poole, 935 So. 2d 431 (Ala. 2006). He is a Fellow in the American College of Trial Lawyers.
  • Ed R. Haden’s 14 years of legal experience have encompassed a broad range of both private sector work and government service. Mr. Haden’s involvement in over 30 appeals has included his successful service as amicus counsel in The Citizens Bank v. Alafabco, 539 U.S. 52 (2003), that reversed a line of Alabama cases holding that the Federal Arbitration Act did not reach in-state commercial activities, and in Eagerton v. Second Economic Development Co-operative District of Lowndes County, 909 So. 2d 783 (Ala. 2005), which held that a bond issue was unconstitutional. He also served as counsel in Heffner v. Blue Cross and Blue Shield of Alabama, 443 F.3d 1330 (11th Cir. 2006), which decertified a large class action against a health insurer. Mr. Haden, a magna cum laude graduate of the Washington and Lee University School of Law, previously served as the Constitutional Law and Nominations Counsel for the United States Senate Judiciary Committee, Chief Counsel of the U.S. Senate Courts Subcommittee, as a law clerk for the Honorable E. Grady Jolly of the United States Court of Appeals for the Fifth Circuit, and as a staff attorney for Justice Harold See on the Supreme Court of Alabama.
  • Gregory C. Cook has over 15 years of litigation experience and has been involved in 25 reported appellate decisions. A magna cum laude graduate of Harvard Law School, Mr. Cook has substantial experience in litigating and appealing matters dealing with class actions, financial services, energy, and workers’ compensation. He has orally argued before the Alabama Supreme Court and the Ninth Circuit. He successfully argued for reversal of a landmark workers compensation retaliatory discharge case in Alabama Power Co. v. Aldridge, 854 So. 2d 554 (Ala. 2002), and the reversal of a class action certification in Lackey v. Central Bank of the South, 710 So. 2d 419 (Ala. 1998), and for reversal of an overly broad discovery order in Ex parte Compass Bank (Re Qanadilo v. Compass Bank), 686 So. 2d 1135 (Ala. 1996).
  • W. Joseph McCorkle, Jr. has extensive experience in post-trial motion and appellate practice, recently specializing in attacking punitive damages. In his more than 20 years of practice, he has been involved in more than 25 appeals, including the successful defense against an intentional interference with business relations claim in Tom’s Foods, Inc. v. Carn, 896 So. 2d 443 (Ala. 2004), the successful reversal of a $3.4 billion breach of contract and fraud judgment against Exxon Mobile Corp. v. Department of Conservation and Natural Resources, 859 So. 2d 1096 (Ala. 2002), and the successful argument as amicus counsel that there is no civil cause of action for a criminal violation in Lewis v. Fraunfelder, 796 So. 2d 1067 (Ala. 2000).
  • Michael J. Bowers, the former Attorney General of Georgia, has more than 30 years of litigation experience. His practice concentrates on general civil litigation in federal and state trial and appellate courts. He successfully defended the constitutionality of ballot language selected by Georgia's legislature for proposed amendment regarding when the State, its agencies, and its employees would be subject to lawsuits in Burton v. State of Georgia, 953 F.2d 1266 ( 11th Cir. 1992) . He currently serves as Chairman of the Georgia Judicial Nominating Commission.
  • Leigh Anne Hodge has practiced in healthcare litigation for over 15 years, representing payors and healthcare providers. She served as counsel on Heffner v. Blue Cross and Blue Shield of Alabama, 443 F.3d 1330 (11th Cir. 2006), which decertified a large class action against a health insurer. She served as a law clerk to the Honorable Edward S. Smith, Senior Circuit Judge for the United States Court of Appeals for the Federal Circuit.
  • R. Pepper Crutcher, Jr. has more than 25 years of legal experience. He has enforced non-union employment arbitration agreements and has defended employment discrimination, whistleblower, employee contract, labor union contract and trust fund suits, Wage & Hour (FLSA) collective actions, non-competition covenant and tortious interference disputes, lender liability and Fair Debt Collection Practices Act class claims, antitrust (group boycott) litigation, software design defect litigation, and pharmaceutical pricing cases. He has prosecuted and defended appeals in the United States Court of Appeals for the Fifth Circuit and the appellate courts of Mississippi, Louisiana, and Texas. A graduate of the University of Virginia School of Law, Mr. Crutcher most recently represented amicus Washington Legal Foundation supporting the successful appeal in 3M Company v. Johnson, 926 So. 2d 860 (Miss. 2006), and amicus Mississippi Manufacturers Association seeking a third party writ of certiorari in Morris Newspaper Corp. v. Allen, 933 So. 2d 303 (Miss. 2006).
  • Joshua Z. Rokach has more than 30 years of legal experience. He served in the Solicitor's Office at the Federal Energy Regulatory Commission (“FERC”). He has argued over sixty cases in numerous federal courts of appeal. He successfully briefed Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571 (1981), dealing with the filed rate doctrine, and successfully argued East Columbia Basin Irrigation District v. FERC, 946 F.2d 1550 (D.C. Cir. 1991), regarding the regulation of hydroelectric plants. A graduate of Yale Law School, Mr. Rokach has extensive experience with administrative law.
  • P. Stephen Gidiere, III has over 10 years of legal experience with a concentration on administrative and environmental law. He successfully opposed a certiorari petition by the United States in Leavitt v. Tennessee Valley Authority, 541 U.S. 1030 (2004), following a favorable decision of Eleventh Circuit in a Clean Air Act case. In Alabama Tombigbee Rivers Coalition v. Norton, 338 F.3d 1244 (11th Cir. 2003), he obtained reversal of summary judgment in favor of United States in Endangered Species Act case. He is a nationally recognized expert on the Freedom of Information Act. Mr. Gidiere served as a law clerk to the Honorable Emmett R. Cox in the United States Court of Appeals for the Eleventh Circuit and as an attorney-advisor to the United States Department of the Interior.
  • John D. Pickering has over 10 years of experience dealing with banking and financial services regulation, commercial lending, factoring, and secured transactions, and real estate lending, leasing, and development. He graduated from the University of Texas School of Law and served as a law clerk to the Honorable David Sentelle of the United States Court of Appeals for the District of Columbia Circuit.
  • Kristin K. Henson’s practice focuses on intellectual property and appellate law. She holds a Ph.D. in English from New York University and graduated magna cum laude from Cumberland Law School. She served as a law clerk on the United States Court of Appeals for the Eleventh Circuit for the Honorable Ed E. Carnes.
  • Thomas L. Casey, III’s practice focuses on administrative and environmental law. He served as a law clerk to the Honorable Emmett R. Cox on the United States Court of Appeals for the Eleventh Circuit and as a law clerk on the United States Court of Federal Claims in Washington, D.C. He is a magna cum laude graduate of the University of Alabama School of Law.
  • Kelly F. Pate’s practice focuses on general litigation, including employment matters, and appellate law. She served as a law clerk to the Honorable Joel F. Dubina for the United States Court of Appeals for the Eleventh Circuit. She successfully argued in Stephens v. Regions Bank, No. 05-16517, 2006 WL 2947152 (11th Cir. Oct. 16, 2006), that the Plaintiff failed to establish the employer's legitimate, nondiscriminatory reasons for the adverse employment action were a pretext for discrimination. She is a magna cum laude graduate of Cumberland Law School.
  • Christopher L. Yeilding has practiced in general litigation for over five years, focusing on healthcare litigation, business litigation, and insurance coverage issues. He has been involved in more than ten appeals, including serving as counsel in Heffner v. Blue Cross and Blue Shield of Alabama, 443 F.3d 1330 (11th Cir. 2006), which decertified a large class action against a health insurer.  Mr. Yeilding also served as counsel in Vulcan Materials Co. v. Alabama Insurance Guaranty Association, et al., 2007 Ala. LEXIS 155 (Ala. Aug. 3, 2007), which affirmed the dismissal of a declaratory judgment action brought by an insured against many insurers over a coverage dispute.  He also has defended several insurers in successful appeals in ERISA litigation.  Mr. Yeilding is a magna cum laude graduate of the University of Alabama School of Law.

    REPRESENTATIVE CLIENTS

    • Alabama Power Company
    • Alabama Bankers Association
    • Alabama Department of Transportation
    • Allstate Insurance Company
    • Auburn University
    • Blue Cross and Blue Shield of Alabama
    • Compass Bank
    • Exxon Mobil Corporation
    • Nevada Power Company
    • Regions Bank
    • The Southern Company
    • Southern Nuclear Operating Company

SERVICES

Balch & Bingham LLP’s Appellate Practice Group provides a full range of services, including:

  • Briefing and Arguing Appeals. Our lawyers have extensive expertise in briefing and arguing appeals before federal and state courts in virtually every major area of civil defense law. This experience provides invaluable insights and innovative strategies for winning cases on appeal.
  • General Advice on Appellate Matters. In cases where other firms serve as lead counsel, our lawyers provide advice concerning the unique procedural rules and tactical issues involved in appellate matters, assist in protecting and preserving the record at trial, assist clients in understanding the special institutional concerns of appellate courts, and provide advice concerning the best way to craft appellate arguments.
  • Post-Judgment Motions. Our lawyers have vast experience in filing, briefing, and arguing post-judgment motions. These motions are often crucial in overturning a bad result and preserving arguments for appeal.
  • Amicus Briefs. Our attorneys have extensive experience in drafting amicus briefs in support of merits briefs and petitions for rehearing. We have represented the Business Council of Alabama, the Alabama Bankers Association, and other groups interested in supporting a defendant on appeal. On numerous occasions these briefs formed the core of a court’s decision.
  • Unwinding Default Judgments. We have substantial experience in setting aside default judgments both at the trial court level and on appeal. Filing motions under Rule 55 or Rule 60 and filing independent actions can be critical steps to overcoming an initial default.
  • Moot Courts. Our lawyers have extensive experience in federal and state appellate courts that gives them unique insights into the backgrounds, judicial philosophies, and types of questions asked by the judges on these courts at oral argument. We regularly conduct moot oral arguments for our own lawyers to prepare them to appear before appellate courts and can provide this service and participate in other moot courts for counsel who will argue a case. Our new offices include a fully functional moot courtroom in which counsel can improve their arguments before facing a hot bench.
  • Petitions/Applications for Rehearing. Our lawyers have extensive experience drafting petitions and applications for rehearing in federal and state appellate courts. A fresh look at a case can be critical on these time-sensitive matters.
  • Appellate Motions Practice. Our substantial experience in federal and state appellate courts has included arguing for and against a broad array of appellate motions: from motions to amend a petition for review of agency orders to motions to strike evidence outside the record to opposition to motions to expedite appeals. We have many such motions in our files that can serve as persuasive authority when little, if any, published authority on such matters exists.
  • Emergency Matters. Our lawyers are often called upon for emergency legal proceedings in both trial and appellate courts, such as temporary restraining orders, preliminary injunctions, mandamus petitions, and stays pending appeal or certiorari. Our lawyers’ skills in analyzing and arguing legal issues are invaluable in these time-sensitive situations.
  • Agency Appeals. Our lawyers have substantial experience with petitions for review, and appeals from, agency actions. For example, our lawyers regularly provide assistance in proceedings involving the Environmental Protection Agency, the Federal Energy Regulatory Commission, and state agencies.
  • Preserving Error at Trial.  Our lawyers are very familiar with the objections, proffers of evidence, motions, and methods of making arguments at trial necessary to preserve arguments for appeal.  By using an additional attorney to focus on preserving error for appeal, a client can allow the trial team can focus on what they do best while protecting the record in case the trial court imposes a bad result.

BRIEFS & OPINIONS

Punitive Damages:

Exxon Corp. v. Department of Conservation and Natural Resources, 859 So. 2d 1096 (Ala. 2002)

Alfa Life Ins. Corp. v. Jackson, 906 So. 2d 143 (Ala. 2005)

State Constitutional Law:

Eagerton v. Second Economic Development Co-op. Dist. of Lowndes County, 909 So. 2d 783 (Ala. 2005)

Limiting the Scope of an Opinion:

Shiv-Ram, Inc. v. McCaleb, 892 So. 2d 299 (Ala. 2003)

The Commerce Clause:

The Citizens Bank v. Alafabco, 539 U.S. 52 (2003)

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