The skills exemplified by Stites & Harbison attorneys—excellent writing and analysis and the ability to present matters in an interesting and understandable manner tailored for a variety of audiences—make them superb advocates for their clients in all aspects of litigation, including post-trial motions and appellate advocacy.
The possibility of an appeal should be considered from the time a complaint is filed through the end of the trial or hearing. Trial counsel must keep in mind the need to shape and preserve the record for appeal. To this end—and because trial counsel are generally the most knowledgeable about the facts and issues of their cases—virtually every litigator in the firm has appellate experience as well as trial court experience. In addition, a number of Stites & Harbison attorneys focus their practice on appellate advocacy.
Stites & Harbison attorneys have practiced in every federal appellate court in the country (including over 20 attorneys admitted to the United States Supreme Court) and multiple state appellate courts. Three current Stites & Harbison lawyers have argued cases before the United States Supreme Court.
The appellate services provided by Stites & Harbison are based largely on the client's needs. Some clients wish to retain new counsel to handle an appeal, and Stites & Harbison has often been hired to serve that role. In that circumstance, we can offer a new perspective unaffected by the emotions associated with a trial.
We also can serve as a resource to trial counsel who the client wishes to remain active on the appeal. In that role, we provide strategic or analytic assistance to trial counsel. We determine whether to file an appeal and the best and most effective issues to raise, review draft briefs and motions for substantive content and compliance with court rules. We provide technical expertise to ensure compliance with court deadlines and rules.
In Kentucky, we have had extensive experience not only in handling appeals but also in filing, and responding to, motions for discretionary review before the Kentucky Supreme Court. The Kentucky Supreme Court can pick and choose what cases it wishes to hear and decide, and we are well-versed in what may be of interest to that Court.
Finally, Stites & Harbison also is often retained to represent amicus who have a unique interest in an issue before an appellate court. We can guide a client through the appropriate steps and file amicus curiae briefs to make sure the appellate court has all relevant information and arguments before it.
Recent Experience
The following is a sampling of our recent appellate experiences. It is not an exhaustive list, but only a list intended to identify some of the recent appellate matters handled by Stites & Harbison attorneys.
Federal Appellate Courts
- Reed Elsevier, Inc. v. Muchnick, No. 08-103 (U.S. 2009). Authored Amicus Curiae brief to the United States Supreme Court on behalf of the American Intellectual Property Law Association in a copyright infringement class action.
- Euclid Chemical Co. v. Vector Corrosion Technologies, Inc., 561 F.3d 1340 (Fed. Cir. 2009). Represented patent holder before the Federal Circuit in dispute over assignment of the patent and whether the opposing party has settled or abandoned some of its claims relating to the patent.
- Paducah & Louisville Railway Co. v. Quixx Corp., 294 Fed. Appx. 995 (6th Cir. 2008). Successfully represented client in appeal by railroad from summary judgment granted to our client on claim that its work on rail car caused train derailment.
- White v. Howmedica, 490 F.3d 1014 (8th Cir. 2007). Successfully represented medical device manufacturer in appeal upholding the trial court’s exclusion of an untimely identified expert witness.
- Fox v. Desoto, 489 F.3d 227 (6th Cir. 2007). The Sixth Circuit affirmed summary judgment in favor of our client, the Louisville Regional Airport Authority, on claims arising from plaintiff’s arrest at the Louisville International Airport.
- Crenshaw v. Antokol, 206 Fed. Appx. 560 (7th Cir. 2006). The Seventh Circuit affirmed summary judgment granted to our client who alleged that parties to a prior lawsuit had conspired against her.
- B. L. Harbert International, LLC v. Hercules Steel Co., 441 F.3d 905 (11th Cir. 2006). Represented the prevailing party in an arbitration proceeding and the federal litigation which followed. The Eleventh Circuit clarified the high standard that must be met by a party challenging an arbitration award.
State Appellate Courts
- Fluke Corp. v. LeMaster, No. 2008-SD-530-D (Ky. 2009). Authored Amicus Curiae brief to the Kentucky Supreme Court on behalf of the Product Liability Advisory Council, Inc., in a case involving the statute of limitations and the boundaries of the doctrine of equitable estoppel.
- Dubin Orthopaedic Center, P.S.C. v. Commonwealth, ____ S.W.3d ____ (Ky. 2009). Represented Amicus Curiae American Medical Association and Kentucky Medical Association in case in which the Kentucky Supreme Court recognized that a physician could bill for physical therapy evaluation notwithstanding a Kentucky statute which prohibited any person to bill for physical therapy unless the physical therapy was under the supervision of a licensed physical therapist.
- Miller v. Johnson Controls, Inc., _____ S.W.3d _____ (Ky. 2009). Successfully represented taxpayer in action challenging Kentucky’s prohibition against the filing of combined tax returns under the unitary business concept.
- Mammoth Medical, Inc. v. Bunnell, 265 S.W.3d 205 (Ky. 2008). Convinced the Kentucky Supreme Court to grant extraordinary relief and prevent a potential defendant from filing a declaratory judgment action seeking adjudication of the potential defendant’s defenses. The filing of such a declaratory judgment action would have deprived our client, the aggrieved party and the potential plaintiff, of its right to file its lawsuit in the forum of its choice.
- American General Home Equity, Inc. v. Kestel, 253 S.W.3d 543 (Ky. 2008). Convinced the Kentucky Supreme Court to reverse the Court of Appeals and provide guidance on when a party’s litigation conduct amounts to an implied waiver of its right to enforce a contractual right to arbitrate.
- King Drugs, Inc. v. Commonwealth, 250 S.W.3d 643 (Ky. 2008). The Kentucky Supreme Court reversed both the Franklin Circuit Court and the Court of Appeals in reinstating a favorable tax ruling for our client by the Kentucky Board of Tax Appeals.
- Cape Publications, Inc. v. University of Louisville Foundation, 260 S.W.3d 818 (Ky. 2008). The Kentucky Supreme Court recognized our client’s right to honor promises of confidentiality made to its donors.
- Colonial Pipeline Co. v. Morgan, 263 S.W.2d 827 (Tenn. 2008). Successful appeal on behalf of a client challenging the constitutionality of specified portions of state tax code in which the trial court had dismissed the lawsuit due to an alleged failure to exhaust administrative remedies. The Tennessee Court of Appeals reversed, and the Tennessee Supreme Court affirmed the Court of Appeals.
- Dunn v. Kentucky Farm Bureau Mutual Ins. Co., 2009 Ky. App. Unpub. LEXIS 422 (Ky. App. 2009). Kentucky Court of Appeals affirmed summary judgment granted our client in class action lawsuit concerning interest to be paid on insurance claim payments. The affirmance included the dismissal of the class claims prior to any motion to certify the plaintiff class.
- Health Alliance of Greater Cincinnati v. The Christ Hospital, 2008 Ohio App. LEXIS 4191 (Ohio App. 2008). The Ohio Court of Appeals affirmed the trial court’s recognition of our hospital client’s right to withdraw from a health alliance, which was found to have breached a duty to the hospital.
- Cincinnati Insurance Co. v. Hofmeister, 2008 Ky. App. LEXIS 313 (Ky. App. 2008). In a lengthy opinion, the Kentucky Court of Appeals reversed a $28.5 million bad faith jury verdict against our client, Cincinnati Insurance Company. The Kentucky Supreme Court subsequently denied the opposition’s motion for discretionary review, in which the Kentucky Supreme Court was asked to review the Court of Appeals decision.
- Vibratech v. Frost, 661 S.E.2d 185 (Ga. App. 2008). Successfully defended a default judgment obtained in the trial court, with the Georgia Court of Appeals exploring the reach of Georgia’s long-arm statute.
- Wesibord/Etkin/Goldberg v. Gainesway Management Corp., No. 2007-CA-00280-MR (Ky. App. 2008). Successfully represented members of a horse syndicate alleged to have violated the agreement that governed the syndicate. The Court of Appeals affirmed the summary judgment granted our clients by the trial court.
- Crider v. Monarch Engineering, Inc., No. 2003-CA-000588-MR (Ky. App. 2008). Successfully argued that builder of a water tower was entitled to assert the up-the-ladder defense in an action brought by the estate of a subcontractor’s employee who fell to his death while painting the water tower.
- Cissell v. KFC Corp., 2007 Ky. App. Unpub. LEXIS 3 (Ky. App. 2007). Successfully represented KFC in action alleging negligence, slander, libel, unlawful imprisonment, outrageous conduct, and violations of the plaintiff’s civil rights.
- Haven Steel Products, Inc. v. Cowan, No. 2008-CA-00295-MR (Ky. App. 2007). Obtained reversal of a $5.9 million jury verdict against manufacturer of rotary cutter blades installed on a mower based on the erroneous admission of evidence.
- Commonwealth v. Autozone Development Corp., No. 2006-CA-002175-MR (Ky. App. 2007). Successfully represented taxpayer in upholding a decision of the Kentucky Board of Tax Appeals that the taxpayer was entitled to a tax deduction for dividends paid to shareholders.
- Commonwealth v. Kentucky Public Service Commission, No. 2006-CA-002349-MR (Ky. App. 2006). Kentucky Court of Appeals affirmed the right of our client, a utility company, to immediately include in its rates certain environmental costs.
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