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On January 15, 2021, the news leaked that Governor Doug Ducey would appoint to the bench of the Superior Court Mesch Clark Rothschild’s very own Gary J. Cohen—the original Tri-Pellate lawyer! With his elevation, Gary has passed his mantle to a new generation of tri-pellate lawyers, Alex Winkleman and Bern Velasco. Stepping into the Hon. […]
Timbs v. Indiana, 139 S. Ct. 682 (2019) In Timbs v. Indiana, a unanimous Supreme Court held that the excessive fines clause of the Eighth Amendment applies to the states regarding criminal fines and civil forfeitures. The Court in Timbs did not establish a test to consider the Defendant’s ability to pay in determining whether […]
Appellate law is significantly different from other areas of the law, as an appeal is not the same as a trial. In an appeals case, it is not possible to introduce new evidence or to present oral arguments based on evidence that was previously introduced at the trial. An appeal has the greatest chance of […]
The American Rule controls assessment of attorney fees arising out of litigation. Under this rule, each party is responsible for paying its own attorney fees, unless specific authority granted by statute or contract allows the assessment of those fees against the other party. The American Rule contrasts with the English Rule, under which the losing […]
Chief Justice Roberts famously told the Senate Judiciary Committee during his nomination hearing that “[j]udges are like umpires…it’s my job to call balls and strikes and not to pitch and bat” because “[n]obody ever went to a ball game to see an umpire.” This common refrain from judges seemingly conflicts with Judge T.S. Ellis’ reported […]
This column will return again to Rule 68 Offers of Judgment, specifically: how to make a proper, enforceable offer of judgment. While the premise of the rule is straightforward, as is often the case, the devil is in the details. Because an error in an offer of judgment can cost clients a substantial sum at […]
Bench trials are common but rarely discussed in this column. These cases often involve complex, technical issues in which it becomes obvious as the case develops at trial that the judge needs to be better informed on an essential topic in the litigation. If this situation (amongst others) presents itself, a tri-pellate lawyer can offer […]
“Let’s just get the verdict we want, and worry about the appeal later.” This statement – supposedly from legendary Arizona trial lawyer and politician Mo Udall – has been repeatedly made by “trial lawyers”. This approach makes “appellate lawyers” shudder. The appellate lawyer is always on the lookout for timely, accurately stated objections on any […]
Debates, rallies, and town halls are taking place all across the United States as we near our country’s 58th quadrennial U.S. presidential election on November 8. These presentations provide a great opportunity to identify and learn effective persuasion techniques that both politicians and lawyers use. Some of those common oral persuasion techniques are as follows: […]
Every “baby” litigator is taught, or at least should be taught, early in their career, to “preserve the record” in case there is an appeal. This is because appellate review— absent extraordinary circumstances such as the very rarely found “fundamental error”— is limited to issues raised in the trial court through objection, motion or, in […]
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