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Sample Appellate Brief by jolinmilioncherie

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									APPENDIX E

Sample Appellate Brief
This appellate brief addresses a pure question of law. It sets out two alternative
arguments for the relief sought. The second of these is phrased so as to avoid
undercutting the first (see Summary of Argument). Both arguments rely on techniques of
statutory construction and policy rationales.

                     IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTEENTH1 CIRCUIT

DR. JUNE TEMPLE AND
NORTHPARK FAMILY CLINIC, INC.,
      Appellants
          v.                                                                Docket No. 92-1939
RICHARD SINGER,
      Appellee.

                                  BRIEF FOR APPELLANTS2

                                    TABLE OF CONTENTS
Table of Authorities
Questions Presented
Statute Involved
Jurisdiction
Statement of the Case
Summary of Argument
Argument
I.             THE ORDER ENFORCING THE DEFENDANTS' OFFER OF JUDGMENT
               SHOULD BE REVERSED BECAUSE THE PLAINTIFF'S COUNTEROFFER
               HAD ALREADY EXTINGUISHED THE DEFENDANTS' OFFER.
II.            THE ORDER ENFORCING THE DEFENDANTS' OFFER OF JUDGMENT
               SHOULD BE REVERSED BECAUSE THE COURT'S SUMMARY
               JUDGMENT ORDER EXTINGUISHED ANY OFFER OF JUDGMENT
               STILL OUTSTANDING.

      1
     This is a hypothetical circuit.
      2
     This brief is adapted from a student brief written by Phillip C. Griffeth, Donna G. Hedgepeth, and
Angela D. Medders.
Conclusion

TABLE OF AUTHORITIES

United States Supreme Court Cases

Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975)       6

Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981)                      3

Kamen v. Kemper Fin. Servs., Inc., 111 S. Ct. 1711 (1991)                 3

Marek v. Chesney, 473 U.S. 1 (1985)                                       3, 5, 6

Sibbach v. Wilson & Co., Inc., 312 U.S. 1 (1941)                          4

United States Court of Appeals Cases

Collins v. Thompson, 679 F.2d 168 (9th Cir. 1982)                         4

Johnson v. University College of the Univ. of Ala., 706 F.2d 1205 (11th   3
Cir.), cert. denied, 464 U.S. 994 (1983)

Radecki v. Amoco Oil Co., 858 F.2d 397 (8th Cir. 1988)                    3

Traywick v. Juhola, 922 F.2d 786 (11th Cir. 1991)                         2

Federal District Court Cases

Adams v. Wolff, 110 F.R.D. 291 (D. Nev. 1986)                             3

Bentley v. Bolger, 110 F.R.D. 108 (C.D. Ill. 1986)                        3

Boorstein v. City of New York, 107 F.R.D. 31 (S.D.N.Y. 1985)              3

Greenwood v. Stevenson, 88 F.R.D. 225 (D.R.I. 1980)                       3, 5, 6

Rateree v. Rockett, 668 F. Supp. 1155 (N.D. Ill. 1987)                    3, 4

Federal Statutes

28 U.S.C. § 2072 (1988)                                                   4

Fed. R. Civ. P. 68                                                        Passim
Legislative History

Committee on Rules of Practice and Procedure of the Judicial Conf. of the       3
United States, Proposed Amendments to the Fed. R. Civ. P. (Prelim. Draft
Sept. 1984), reprintedin 102 F.R.D. 407 (1985)

Secondary Authorities

Corbin, Arthur L., 1 Corbin on Contracts,§§ 90 & 92 (1963)                      4

Jaeger, Walter H.E., 1 Williston on Contracts,§ 51 (3d ed. 1959)                4

Restatement (Second) of Contracts, §§ 36(1) & 39(2)(1981)                       4

Simon, Roy D., Jr., Rule 68 at the Crossroads: The Relationship Between         4
Offers of Judgment and Statutory Attorney's Fees, 53 U. Cin. L. Rev. 889
(1984)

Wright, Charles A. & Arthur R. Miller, 12 Federal Practice and Procedure§       6
3003 (1973)

                              QUESTIONS PRESENTED

   1. Can a plaintiff enforce an offer of judgment made pursuant to Fed. R. Civ. P. 68
      when the plaintiff responded to the offer with a counter-offer rather than an
      acceptance and when the plaintiff did not specify an intention to take the offer
      under advisement?
   2. Can a plaintiff enforce a Rule 68 offer of judgment when the plaintiff did not
      accept the offer until after the court adjudicated the plaintiff's claims by granting
      summary judgment?

                                STATUTE INVOLVED

Rule 68 of the Federal Rules of Civil Procedure provides as follows:

   At any time more than 10 days before the trial begins, a party defending against a
   claim may serve upon the adverse party an offer to allow judgment to be taken
   against the defending party for the money or property or to the effect specified in the
   offer, with costs then accrued. If within 10 days after the service of the offer the
   adverse party serves written notice that the offer is accepted, either party may then
   file the offer and notice of acceptance together with proof of service thereof and
   thereupon the clerk shall enter judgment. An offer not accepted shall be deemed
   withdrawn and evidence thereof is not admissible except in a proceeding to determine
   costs. If the judgment finally obtained by the offeree is not more favorable than the
   offer, the offeree must pay the costs incurred after the making of the offer. The fact
   that an offer is made but not accepted does not preclude a subsequent offer. When the
   liability of one party to another has been determined by verdict or order or judgment,
   but the amount or extent of the liability remains to be determined by further
   proceedings, the party adjudged liable may make an offer of judgment, which shall
   have the same effect as an offer made before trial if it is served within a reasonable
   time not less than 10 days prior to the commencement of hearings to determine the
   amount or extent of liability.

                                     JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1291 (1988).

                              STATEMENT OF THE CASE

    On August 3, 1991, the Plaintiff filed this diversity action alleging medical
malpractice against Dr. June Temple and the Northpark Family Clinic. (R. 1.) On January
17, 1992, after extensive discovery, the Defendants moved for summary judgment. (R.
11.) The District Court took the motion under advisement.

    On June 1, 1992, while the motion was pending, the Defendants made an Offer of
Judgment in the amount of $100,000, pursuant to Fed. R. Civ. P. 68. (R. 24.) The
Plaintiff did not accept the offer. Rather, on June 4, he served a document entitled
“Plaintiff's Offer of Judgment.” (R. 27.) The document purported to be a Rule 68 offer to
accept the entry of judgment in the amount of $225,000. The Plaintiff never specified that
he was still considering the Defendants' initial Offer. (R. 27.)

    On June 7, the District Court granted the Defendants' Motion for Summary Judgment.
(R. 18-23.) After learning of the Order granting summary judgment against him, the
Plaintiff attempted to accept the Defendants' initial Offer of Judgment by serving an
Acceptance of Offer of Judgment on June 8, 1992. (R. 25.) The Defendants moved for an
order striking the Plaintiff's Acceptance. (R. 26.) After hearing argument, the District
Court denied the motion to strike and entered judgment in favor of the Plaintiff for
$100,000 plus costs. (R. 34.) The Defendants have filed this appeal seeking reversal of
the District Court's order enforcing the Offer of Judgment.

                              SUMMARY OF ARGUMENT

    The Plaintiff's counteroffer constituted a rejection of the Defendants' Offer of
Judgment and thus extinguished it. This interpretation is consistent with the policies and
purposes behind Rule 68 and with existing case law and commentary upon the Rule.
Further, this interpretation is consistent with long-standing contract principles, which
establish that a counteroffer terminates the offeree's power to accept the original offer. In
addition, interpreting Rule 68 to permit an absolute ten-day period within which a
plaintiff can consider acceptance would exceed the Court's judicial authority under the
Rules Enabling Act.
    Even if the counteroffer had not extinguished the initial Offer, the District Court's
order granting summary judgment would have extinguished it. The order constituted an
adjudication on the merits and terminated any rights the Plaintiff may have had to enforce
the original Offer. Interpreting the Rule to allow acceptance after an order granting
summary judgment would do nothing to further the Rule's purpose of encouraging
settlement of pending litigation. Further, such an interpretation would create unfair
tactical advantages for plaintiffs at the expense of defendants.

                                       ARGUMENT

    The Defendants' Offer of Judgment was extinguished either by the Plaintiff's
counteroffer or by the District Court's Summary Judgment Order. The facts surrounding
these two events are undisputed, and the determination of the issues raised by this appeal
will not require the application of law to fact. Therefore, both issues are pure questions of
law, to which a de novo standard of review applies, Traywick v. Juhola, 922 F.2d 786,
787 (11th Cir. 1991).

  I.   THE ORDER ENFORCING THE DEFENDANTS' OFFER OF JUDGMENT
       SHOULD BE REVERSED BECAUSE THE PLAINTIFF'S COUNTEROFFER
       HAD ALREADY EXTINGUISHED THE DEFENDANTS' OFFER.

    Rule 68 provides that a defendant may serve upon the plaintiff an offer to allow
judgment to be taken against the defendant upon the terms specified in the offer. If the
plaintiff accepts the offer within ten days, the agreement becomes binding, and the court
enters judgment. Fed. R. Civ. P. 68 (1995). An offer not accepted within ten days is
deemed withdrawn. Id. If the judgment ultimately entered is not more favorable than the
offer, the plaintiff must pay any litigation costs incurred by the defendant after the offer
was made. Id. The Rule's purpose is to encourage parties to settle litigation. Marek v.
Chesney, 473 U.S. 1, 5 (1985); Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981).

    Any response to a Rule 68 offer other than an unqualified acceptance operates as a
rejection. Rateree v. Rockett, 668 F. Supp. 1155 (N.D. Ill. 1987); Roy D. Simon, Jr., Rule
68 at the Crossroads: The Relationship Between Offers of Judgment and Statutory
Attorney's Fees, 53 U. Cin. L. Rev. 889, 921 (1984). In Rateree, the court noted that,
consistent with the Supreme Court's guidelines in Marek, “a plaintiff cannot do anything
except simply say ‘I accept’ if he or she expects to enforce the offer under Rule 68.” Id.
at 1158.

    Once a plaintiff responds with anything other than an acceptance, the original offer is
deemed withdrawn. The Rule allows a plaintiff a ten-day maximum period during which
the plaintiff can consider the offer. However, the Rule does not require a plaintiff to use
the entire ten days allotted by the Rule.

    The Rules Advisory Committee also understood the present language of Rule 68 to
mean that an attempted counteroffer operates as a rejection of the initial offer. In 1984,
the Committee proposed amendments to Rule 68. In a note explaining the proposed
changes, the Committee explained that under the proposed Rule “a written counteroffer
would not constitute a rejection unless it expressly so stated.” Committee on Rules of
Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft
of Proposed Amendments to the Federal Rules of Civil Procedure (Sept. 1984), reprinted
in 102 F.R.D. 407, 435 (1985). The Committee's explanation of the proposed amendment
(never adopted) demonstrates that under the present version of Rule 68, a counteroffer
does constitute a rejection. Further, the fact that the proposed amendment was not
adopted demonstrates that such a construction of Rule 68 has been specifically
considered and rejected.

    If the express language of the Rule does not resolve a question of interpretation, the
court should look to related state law for guidance. To whatever extent the language of
the Rule does not specifically address the effect of a counteroffer, the court's
interpretation creates a common law construction that is essentially federal in character.
See generally Kamen v. Kemper Fin. Servs., Inc., 111 S. Ct. 1711, 1717 (1991). In
Kamen, the Supreme Court observed that such constructions of federal law should not be
“wholly the product of a federal court's devising.” Rather, the Supreme Court cautioned
that the federal court should “fill the interstices of a federal...scheme” by incorporating
state law. Id. at 1717. This presumption is especially strong when the parties have reason
to believe that state law rather than federal law will apply to their rights and obligations.
Id. at 1717.

    In the case of Rule 68, the relevant body of state law is contract law. Rule 68 is a
process by which the parties can achieve a private contractual agreement. Greenwood v.
Stevenson, 88 F.R.D. 225, 229 (D.R.I. 1980). Therefore, courts have consistently held
that general contract principles determine whether an offer or acceptance complies with
the Rule's requirements. Radecki v. Amoco Oil Co., 858 F.2d 397, 400 (8th Cir. 1988).
See also Johnson v. University College of the Univ. of Ala., 706 F.2d 1205, 1209 (11th
Cir.), cert.denied, 464 U.S. 994 (1983); Adams v. Wolff, 110 F.R.D. 291, 293 (D. Nev.
1986); Bentley v. Bolger, 110 F.R.D. 108, 113-14 (C.D. Ill. 1986); Boorstein v. City of
New York, 107 F.R.D. 31, 33-34 (S.D.N.Y. 1985). Parties utilizing Rule 68 have long had
reason to believe that general contract principles will apply to their Rule 68 filings. Since
the presumption to incorporate state law is especially strong in such cases, a federal court
should fill the interstices of Rule 68 by incorporating the substantive law of contracts.

    It is a rudimentary contract principle that a counteroffer terminates the power to
accept the previously made offer.Restatement (Second) of Contracts, §§ 36(1) & 39(2)
(1981); 1 Arthur L. Corbin, Corbin on Contracts § 90 (1963). See also 1 Walter H.E.
Jaeger, Williston on Contracts§ 51 (3d ed. 1959). Only a counteroffer that specifies an
intention to take the original offer under advisement would not have the effect of
extinguishing the original offer. Restatement (Second) of Contracts § 39(2) (1981). See
also 1 Corbin, Contracts § 92.

   For instance, in Collins v. Thompson, 679 F.2d 168 (9th Cir. 1982), a suit by prison
inmates, the parties reached a settlement and the State filed the terms in a proposed
consent decree. Subsequently, the State submitted a revised proposal with a later
compliance date. The prisoners moved to enforce the first proposed decree or, in the
alternative, for amended notice to class members of the later date. Id. at 169. The court
observed that, by their alternative motion, the prisoners had indicated their continued
interest in accepting the later date should the earlier date not be enforceable. Id. at 172.

    Further, if Rule 68 created an absolute ten-day period, the Rule would exceed the
Court's authority under the Rules Enabling Act, 28 U.S.C. § 2072 (1995). The Act gives
the Supreme Court the power to prescribe general rules of procedure for the federal
courts. However, the Act specifically cautions that “[s]uch rules shall not abridge, enlarge
or modify any substantive right.” 28 U.S.C. § 2072(a)-(b).

    The Supreme Court has defined “substantive rights” as used in the Act to mean those
“rights conferred by law to be protected and enforced in accordance with the adjective
law of judicial procedure.” Sibbach v. Wilson Co., Inc., 312 U.S. 1, 13 (1941). According
to the Supreme Court, the test is whether the rule regulates “the judicial process for
enforcing rights and duties” or whether the rule regulates the substantive law that grants
those rights and duties. Id. at 14.

    A construction of Rule 68 that caused an offer to survive a counter-offer would
“abridge, enlarge, or modify” substantive rights. Under the Rule, the district court plays a
minor role in the actual settlement negotiations. A defending party does not file the Offer
with the court, but rather serves it upon the adverse party. Fed. R. Civ. P. 68. The court
does not even become aware of the Offer unless the parties reach an agreement. Id. The
district court only “formaliz[es] the agreement hammered out by the parties.”
Greenwood, 88 F.R.D. at 229. Thus, a defendant's right to contract for settlement is a
substantive right, and a construction of Rule 68 that caused a settlement offer to survive a
counteroffer would abridge those substantive rights.

    Here, the Plaintiff's counteroffer operated as a rejection of the Defendants' Offer and
thus extinguished it. Defendants' Offer of Judgment under Rule 68 created a power of
acceptance in the Plaintiff. If the Plaintiff had any interest in keeping the Offer alive, he
had several options: He could have chosen to accept the Offer on its terms; he could have
filed no formal response to the Offer but negotiated with the Defendants outside the
constraints of Rule 68; or he could have filed a counteroffer specifically indicating his
intention to continue considering the original Offer.

    Instead, three days after receiving the Offer, he served a counteroffer. (R. 27.) His
counteroffer made no mention of the original Offer and did not specify any intention of
taking that Offer under advisement. Further, the counteroffer specified an amount more
than twice the amount of the initial Offer. (R. 27.) His action can only be construed as a
rejection of the original Offer, thus terminating his power of acceptance.

   The Plaintiff did not have to respond to the Offer at all; however, he chose to do so.
He cannot later change his mind, after learning that the District Court had granted
summary judgment against him, and attempt to accept the Offer he had already rejected.
 II.      THE ORDER ENFORCING THE DEFENDANTS' OFFER OF JUDGMENT
          SHOULD BE REVERSED BECAUSE THE COURT'S SUMMARY
          JUDGMENT ORDER EXTINGUISHED ANY OFFER OF JUDGMENT STILL
          OUTSTANDING.

     The District Court's order granting summary judgment was an adjudication on the
merits of the case and a final decision of the rights and liabilities of the parties. Therefore,
it terminated any remaining right the Plaintiff may have had to enforce the original Offer.

    Rule 68 encourages settlement of pending controversies by allowing litigants to
balance the risks and costs of litigation with their chances for success. Marek v. Chesney,
473 U.S. 1, 5 (1985). The Rule is not intended to permit acceptance of an offer of
judgment after the court has resolved the case. At that point, settlement of the dispute is
no longer an option for the loser, because a legal dispute no longer exists.

    Further, allowing a plaintiff to accept an offer after the court has decided the case
would unfairly advantage the plaintiff over the defendant. The Supreme Court has held
that the Rule's “policy of encouraging settlements is neutral, favoring neither plaintiffs
nor defendants.” Marek, 473 U.S. at 10. Permitting acceptance of the original offer of
judgment after the granting of summary judgment would frustrate this policy by giving
significant tactical advantages to the plaintiff.

    These tactical advantages are demonstrated by the policy rationale behind another
provision of Rule 68—the provision that prohibits offers made within ten days of trial.
This prohibition dovetails with the allowance of ten days in which to respond to an offer.
Greenwood, 88 F.R.D. at 228 (citing 12 Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure§ 3003 (1973)). The purpose of the ten-day prohibition is to
insure that the Rule 68 process is completed while the parties have an equal opportunity
to assess the risks of continuing the litigation. One judge aptly illustrated the result the
ten-day prohibition is intended to avoid:

       [Otherwise an offeree could] watch how the case is unfolding and weigh the
       probabilities. If the trial is going well, the offer can simply be ignored; if things
       begin to look grim, the offeree can decide to go with the sure thing. ...[L]ocking
       one side into a settlement offer while the other side assesses the ongoing trial is,
       purely and simply, stacking the deck.

Greenwood, 88 F.R.D. 225, 228-229 (D.R.I. 1980).

    The “deck stacking” that would result from allowing a plaintiff to accept an offer
after a final adjudication would be far worse than the “deck stacking” described in
Greenwood. The ten-day prohibition is intended to prevent the plaintiff from having a
better opportunity to assess the probabilities of losing; however, at least under the
Greenwood scenario, both parties would still be assessing probabilities.
     Here, the Plaintiff asks the Court to allow a procedural favoritism far worse than that
prevented by the ten-day prohibition. He asks the Court to allow him to wait until the
litigation probabilities have become certainties. As the Supreme Court has cautioned, it is
“inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of
litigation.” Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975).
Allowing a plaintiff to wait until after the case is resolved before accepting an offer the
defendant made before the case was resolved would do just that.

    This Court should not condone manipulations of Rule 68 that would so distort the
Rule's fundamental policy of neutrality. The Rule was never intended to allow the result
the Plaintiff urges. Rather, the Rule was intended to allow the parties to traverse Rule 68
terrain on equal footing. Once the rights and liabilities of the parties have been
adjudicated by the court, any pending Rule 68 offer is extinguished. Therefore, the Court
should hold that the entry of the trial court's order granting summary judgment
extinguished the Defendant's offer of judgment.

                                     CONCLUSION

    For the foregoing reasons, Appellants request that the Judgment of the District Court
be reversed and that the case be remanded with instructions to the District Court to enter
judgment in favor of the Defendants.

                                                                   Respectfully submitted,

DATED: ________                                              _______________________

                                                               Attorney for the Appellants

                              CERTIFICATE OF SERVICE

I, ________, do hereby certify that I have this date served a true and correct copy of the
Appellants' Brief upon the Appellee's counsel by placing a true copy of the Appellants'
Brief in the United States mail, with sufficient postage affixed, and addressed as follows:

   William J. Beck

   P.O. Box 1670

   Hutchfield, [state]

DATED: ___________________                                   _______________________

                                                               Attorney for the Appellants

								
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