Litigating Cases with Questions of First Impression
Smith, Michael F., Defense Counsel Journal
This article originally appeared in the November 2013 Appellate Practice Committee newsletter.
TRIAL is fast approaching. Trial counsel knows a question of first impression is lurking in the background. A case of first impression is "[a] case that presents the court with an issue of law that has not previously been decided by any controlling legal authority in that jurisdiction." Preparing before the frenzy of trial to develop a strategy for addressing a question of first impression at the right time and in the right procedural context is of vital importance to trial counsel.
For example, in recent years we have encountered multiple plaintiffs' counsel in different jurisdictions who have sought a finding of liability as a matter of law based on the equitable doctrine of offensive nonmutual collateral estoppel. Under that doctrine, a plaintiff seeks to prevent a defendant from litigating an issue that the defendant had previously litigated and lost in an action with another party. The plaintiffs' counsel argued that summary judgment on the questions of negligence and defect was proper based on the fact that juries in other jurisdictions had found either that the manufacturer was negligent in the design of the product or that the product at issue was defective under identical theories of defect.
Many courts recognize the use of that doctrine in the right circumstances, even in the negligence and products liability context. The Supreme Court in our jurisdiction had sanctioned the use of the equitable doctrine of offensive nonmutual collateral estoppel in certain contexts. That court had not, however, applied that doctrine in the context of negligence or products liability involving mass produced consumer goods.
Counsel facing a question of first impression like this should develop a strategy with appellate counsel for addressing the question before the trial court and on appeal. Considering all the options and having a strategy in place will help minimize the possibility of mistrial, waiver, or reversal on appeal.
Counsel Should Plan A Strategy For Addressing a Question of First Impression Long Before Trial
A question of first impression gives trial counsel the opportunity to use the well-reasoned rationale of persuasive authority from other jurisdictions as well as public policy arguments to advocate a client's position. Even if trial counsel perceives that the trial court will not have the time or resources necessary to do an in-depth analysis, laying that foundation in the briefing at the trial court level is necessary to avoid a finding of waiver in the event of an appeal from a final judgment.
Trial counsel should not leave a question of first impression to appellate counsel to address on the fly during trial or as an afterthought on appeal. Instead, trial counsel litigating a case raising a question of first impression should recruit the assistance of appellate counsel long before trial to map out a workable strategy of when and how to raise that question, or to seek intermediate appellate review, to avoid procedural pitfalls that could result in mistrial, waiver, or reversal on appeal.
Intermediate Appellate Review May Be Allowed in Certain Procedural Contexts
To avoid the possibility of reversal on appeal, trial counsel should consider whether intermediate appellate review is an option. Federal courts allow an immediate appeal from a "small class" of collateral orders. Many appellate courts are more inclined to exercise their discretionary mandamus jurisdiction to review a question of first impression. As a general rule, discovery orders are interlocutory orders that are not immediately appealable. Writs of mandamus for discovery orders can be obtained in extraordinary circumstances. Further, depending on the jurisdiction's statutes and rules, certain interlocutory orders may be immediately appealable by right.
Trial and appellate counsel should review the governing law carefully as the failure to timely appeal an interlocutory order appealable by right may preclude intermediate appellate review by a writ. …