How to Decide Whether to Appeal a Case

If you have just lost a trial or a motion to dismiss and are contemplating an appeal, there are important considerations for you and your client to keep in mind. From ensuring that you comply with the relevant timeframes and procedures, to understanding the applicable standard of review and evaluating your chances for success, an experienced appellate attorney can guide you through the process.

As soon as the adverse verdict or ruling comes in, the first question to ask is, ‘what is the deadline for bringing an appeal?’ There are various deadlines throughout the appeals process, but the most important deadline is the first one. No later than 30 days after the decision being appealed is filed with the court clerk, a notice of appeal must be filed. With limited exceptions (such as if one of the parties to the case dies), this is a firm deadline and missing it can be fatal to your appeal.

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HOW TO EVALUATE THE VIABILITY OF AN APPEAL

As soon as the 30-day clock starts to run (and likely even before), it is time to think about potential appealable issues and your chances of success on appeal. In some cases, the basis for your appeal will be obvious to you. Maybe the trial court or opposing counsel made a glaring error during the trial. However, in many cases the possible appellate issues will be far less clear. Moreover, as the lawyer who just lived through a trial, you may have tunnel vision, and the best thing you can do for your client is to bring in a fresh set of eyes to evaluate the viability of an appeal. Appellate lawyers bring a new perspective to a case, one informed by experience searching the trial record for any and all potential errors or issues to appeal. They are likely to see things in the record that trial attorneys are unable to see because they are too close to or too vested in the case, and, unlike experienced appellate attorneys, may not even know what to look for when analyzing a record.

In addition to identifying potential appealable issues, another consideration is determining the applicable standard of review. This is the lens through which the lower court’s decision will be viewed by the appellate court to determine its correctness or propriety. There are multiple standards of review, and your likelihood of success may be higher or substantially lower, depending on which standard is applicable. While there is some flexibility within the various standards of review (discussed below), knowing which standard is applicable is a critical consideration in evaluating the viability of your appeal.

 

WHICH STANDARD OF REVIEW APPLIES TO MY APPEAL?

The standard of review the Washington appellate courts will apply to your case will depend on the type of issue you are appealing, including whether your are raising an issue of law or of fact, and whether your appeal involves a decision by an administrative agency.

  • Substantial Evidence Test: In Washington, findings of fact are generally reviewed under the substantial evidence test, which looks at the factual record. However, if the facts are undisputed, the appellate court can apply the de novo standard.

  • De Novo Review: This is what is known as a non-deferential standard of review, in that it does not place weight on the previous court's finding. It involves an independent review of the evidence, and will be applied to issues of law, motions for summary judgment, and, at times, when the case involves mixed issues of law and fact.

  • Abuse of Discretion: This standard will be applied where the conduct of the court proceedings, which is generally left to the trial judge’s discretion, is at issue in the appeal. It governs rulings on most motions, objections, admissibility of evidence, and general conduct issues such as findings of contempt. Washington courts have stated that discretion is abused only where it can be said “no reasonable person would take the view adopted by the trial court.”

  • Arbitrary or Capricious: This standard generally applies to review of administrative decisions.

 

SHOULD I INCLUDE EVERY POSSIBLE ISSUE IN MY APPEAL?

While you may be tempted to include everything but the kitchen sink in your appeal, in the hope that something will resonate with the court, you should resist the temptation. The appellate courts are overburdened, and diluting your strongest arguments with less persuasive or minor issues may lose both the court’s attention and your credibility. Having to consider nondispositive, superfluous issues on appeal is one of the primary complaints from the appellate bench. Focusing on the one or two issues with the highest probability of success is the best approach.

As noted above, questions of law, reviewed on a “de novo” basis are statistically more likely to result in a reversal than issues of fact or court conduct, which will be reviewed under the more deferential “substantial evidence” or “abuse of discretion” tests. Therefore, your strongest appealable issues are often ones involving issues of law, rather than of fact or procedure.

 
Courts do make mistakes, and bringing an appeal may be the only way to correct judicial error. An appellate victory can provide a vindicating and satisfying resolution to your case.
 
 

OTHER CONSIDERATIONS ON APPEAL

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Numerous other considerations factor into deciding whether to appeal. Appealing a case can be costly and time-consuming. In most cases the appellate process takes at least a year, usually more. There is also an emotional and mental toll that you and your client will pay by choosing to continue an already hard-fought, protracted litigation into the appellate courts. And appellate opinions are read by a far larger group than trial court judgments. Are you and your client prepared for the potential extra scrutiny of the facts of your case? These are but a few of the myriad other issues that should factor into any decision to appeal.

However, trial courts do make mistakes, and bringing an appeal may be the only way to correct judicial error. A successful appeal can provide a vindicating and satisfying resolution to your case. Working with an experienced appellate attorney, who can guide you and your client through the maze of appellate considerations, can help transform an adverse decision below into a favorable outcome on appeal.

 

How I Can Help You

If you are considering an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an appeal following a loss at trial or on a dispositive motion.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.

New REET Rate Structure Begins January 2020

In May of 2019, Governor Jay Inslee signed Senate Bill 5998, which will result in a graduated tiered scale for real estate excise taxes (“REET”) that will replace the previous flat state REET tax of 1.28%.

The following tiered structure takes effect on January 1, 2020:

  • 1.10% – Portion of selling price less than or equal to $500,000

  • 1.28% – Portion of selling price greater than $500,000 and equal to or less than $1.5 million

  • 2.75% – Portion of selling price greater than $1.5 million and equal to or less than $3 million

  • 3.00% – Portion of selling price greater than $3 million

Sales of timberland or agricultural land will remain subject to REET at a 1.28% state tax rate and may be subject to a local REET in addition to the state REET.  

Also included in this legislation is the following:

  • Beginning in 2022 and every fourth year thereafter, the REET thresholds may be adjusted to reflect the lesser of the growth of the consumer price index for shelter or 5%.  If the growth is equal to or less than 0%, the current selling price threshold will continue to apply. 

Another significant result from the legislation relates to the determination of a transfer of a controlling interest.  In Washington, REET applies to the direct transfer of real property, as well as the transfer of a “controlling interest” in an entity that holds real property.  For REET purposes, a transfer of a controlling interest is the combined transfer of 50% or more of the interests in an entity that owns real property.  This legislation changes the time period for determining whether a controlling interest has been transferred (triggering REET on the transfer of certain business interests) from 12 months to 36 months.  The legislation also requires the Washington Secretary of State to adopt rules requiring any entity that is required to file an annual report for the transfer of at least one-third of a controlling interest in an entity.

The result of these changes will be an increased number of transactions subject to REET, even though the overall 50% or more threshold to constitute a transfer of a controlling interest is not changing.

Please contact Michelle A. Green at JDSA Law with any questions about this new legislation or call (509) 662-3685.

USDA Announces 2019 Trade Aid to Farmers

Last week, the U.S. Department of Agriculture (USDA) announced a $16 billion trade aid program for American farmers in response to the trade and tariff impacts on the agriculture industry.   This additional trade aid strategy supplements the USDA Market Facilitation Program of 2018 and aims to support American agricultural growers and producers that have been impacted by recent trade conflicts and export market challenges.

This aid package involves three parts:

  • The centerpiece involves cash payments totaling $14.5 billion through the USDA’s Market Facilitation Program to eligible agricultural growers and producers of a variety of crops, including fresh sweet cherries, fresh grapes and many row crops as well as dairy and pork producers impacted by recent tariffs

  • Purchases totaling $1.4 billion through the USDA’s Food Purchase and Distribution Program to eligible agricultural producers of surplus fresh produce (may include apple and pear growers and other tree fruit producers) and other food products (may include meat and dairy producers) impacted by tariffs. The Food Purchase and Distribution Program facilitates the supply of fresh produce and other food products to help food banks, pantries and school meal programs

  • A $100 million trade promotion program for livestock producers and certain crops to help agricultural industry sectors develop new markets. A similar program launched as part of the USDA’s 2018 trade aid program

In addition to this most recent announcement, more sweet cherry growers may be able to apply for aid under the Market Facilitation Program in 2019, thanks to changes in eligibility supported by Washington Senator Maria Cantwell and Representative Dan Newhouse. Sen. Cantwell and Rep. Newhouse’s provision to expand eligibility to a wider variety of business structures, recently passed the Senate but still awaits a vote in the House.

Details regarding eligibility and payment rates of this trade aid and Market Facilitation Program of 2019 still need to be established by the USDA and are expected at a later date. JDSA Law is committed to following these developments and will keep you updated as events and details continue to unfold.

Top 10 Tips for Writing a Persuasive Appellate Brief

The primary mission of an appellate attorney is to prepare a comprehensive brief, setting forth a persuasive legal argument that is well-supported by case law and the applicable statutory or regulatory framework. Because most appeals are won or lost “on the briefs,” an appellate lawyer must be, first and foremost, a skilled writer. As important as being a strong writer is to the process of preparing an effective appellate brief, however, there are many other considerations and strategies that can transform a well-written brief into a compelling, memorable, and ultimately persuasive presentation. From understanding who your audience is, to applying storytelling techniques, avoiding jargon and legalese, editing (and then editing some more), and using visual aids, here are my top 10 tips for writing a persuasive appellate brief.

1. Know Your Audience

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In the context of appellate advocacy, the role of the judge is very different from that of the practitioner. Justice Richard A. Posner, a well-known and respected federal appellate judge for over twenty-five years and a prolific writer, has said that his “essential advice to the appellate brief writer is to put yourself in the judge’s shoes.” This will help appellate practitioners to “grasp the relevant differences between judge and advocate.” While many appellate judges were practitioners once, many were not. Even those who were are unlikely to have been experts in the particular area of law that your case involves. That is to say, appellate judges are really the last generalists in the practice of law; they know something about almost everything, but few are experts in any particular area.

According to Judge Posner, appellate brief writers must understand the following things about appellate judges:

  • They won’t spend nearly as much time on the case as you will;

  • They are likely to know far less than you about the parties and the commercial field in which the cases arise or other real-world context of the case; and

  • For the most part, they are practical people who want to reach a sensible and reasonable result in those cases not governed by clear statutory text or precedent

 

2. Tell a Story

Once you understand who your audience is, an effective appellate brief will make the case come alive to a person not immersed in the field of law or the situation out of which it arises. The facts and law should not be presented in a vacuum. The judges want a realistic understanding of your case. Narrative elements such as setting, character, and, most importantly, theme, should be woven into both the factual presentation and the legal argument. In telling the story of the case, appellate brief writers should think about the questions a lay person might ask, as a judge is likely to have the same or similar questions. If your brief has told a good story, supported by logical legal analysis, the court should know exactly what the client is asking for and why.

3. Don’t Be Afraid to Use Visual Aids

Effective appellate brief writers in the digital age take advantage of the old adage “a picture is worth a 1000 words,” by occasionally employing graphics, such as photographs, diagrams, maps, graphs, or other images, to illustrate a point. Not only does this break up the monotony of text on a page (or on a screen, as many judges are reading briefs on iPads or other tablets), but being able to see a case can really make it come alive for the court.

4. Be Concise

This is absolutely critical to effective appellate brief writing. A skilled brief writer is able to encapsulate an entire argument into a few short sentences. Your goal is to make it easy for the court to rule in your favor and presenting your case in a succinct and cogent manner allows the court to go through your analysis with minimal effort.

Do not waste the court’s time with unnecessary words. Delete information that the court does not need to know to decide the case.

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5. Don’t Ignore Bad Facts or Law

As difficult as this may be, effective appellate brief writers must include a discussion of the strongest points you expect your opponent to make in his or her brief. Not only do you gain credibility with the court by approaching your case with candor, but your pre-emptive strike may take some of the wind out of your adversary’s sails or further damage their position. That said, while it is appropriate to put your own spin on your opponent’s argument, you must restrain the impulse to spin the facts in order to sway or convince. Instead, you must marshal your facts in a way that inexorably leads the reader to conclude that your client should win.

6. Know the Specific Relief You Are Seeking and Why Your Client Should Prevail

During oral argument appellate judges often ask attorneys, “what exactly does your client want from this case?” You must have a simple, real-life answer to this question, which should be evident from your brief. Indeed, it should be front and center in your Preliminary Statement. As stated above, judges are, for the most part, practical people who want to reach a sensible and reasonable result - at least in those cases not governed by clear statutory text or precedent. They want to feel good about ruling in your client’s favor. Your brief should make them want to rule in your client’s favor and provide ample justification for so doing.

 
Generalist federal judges are unlikely to have the same level of understanding that you do of the particular industry, area of substantive law, or regulatory framework your case involves.
 
 

7. Avoid Using Jargon

As discussed above, generalist federal judges are unlikely to have the same level of understanding that you do of the particular industry, area of substantive law, or regulatory framework your case involves. With that in mind, business and technical jargon, as well as computerese and even legalese, should be avoided.

8. Don’t Beat Judges Over the Head with Statutory Language and Case Law

A tedious, repetitive brief becomes prone to skimming by judges. Avoid using meaningless string cites with little discussion of the specifics of the cases. Instead, present your three best cases with detailed analysis of their applicability. It is also important to refrain from, as Judge Posner put it, “exaggerating the cogency of reasoning by analogy” by trying to persuade the court to base its decision on a previous case, especially a case from another field of law. Instead, the brief should emphasize the decision’s reasoning and policies that bear on your case. This makes for a much more compelling approach.

9. Keep Footnotes to a Minimum

Because they can interrupt the flow of the brief and distract the reader from your argument, footnotes should be avoided unless absolutely necessary.

10. Edit, Then Edit Again

With the ultimate goal being a concise, organized appellate brief that tells a compelling story with a clear theme and minimal industry jargon, you must be merciless with your editing. Go through the “final” brief multiple times, and consider inviting a non-lawyer to review it as well. Eliminate rhetoric, hyperbole, and overstatement.

Brian Keller, an appellate attorney for the U.S. military, talks about “whittling” a brief to the point that every statement serves “as a small, incremental and sequential step towards the conclusion.” (Keller, Concise and Effective Appellate Briefs, The Journal of Appellate Practice and Process, Volume 14, Issue 2, Article 5 (2013)). Keller goes on to advise that appellate brief writers:

  • Avoid the temptation to resolve all issues in one unbroken string of argument paragraphs. Instead, subdivide your argument into its constituent parts.

  • Create descriptively named subheaders for each grouping of relevant facts and for each proposition of law.

  • Maximize the possibility that the court will agree with ninety percent of your sub-propositions, rather than hoping and leaving it to chance that the judges will successfully spot, identify by name and relevant law, and later remember, the one issue that they agreed with, but that was buried deep in your prose and without any signposts or subheadings.

 

Let a Washington Appellate Lawyer Prepare a Persuasive Brief For You

If you are considering an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an appeal following a loss at trial or on a dispositive motion.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.

Appellate Advocacy in the Digital Age

As more and more courts around the country embrace technology, lawyers must keep up or risk being left behind. Indeed, the American Bar Association has stated that professional responsibility requires lawyers to keep abreast of “the benefits and risks associated with relevant technology.” In the appellate context, digital briefs are becoming more prevalent. Many appellate judges are expressing a preference for reading briefs on devices such as iPads. In addition to being portable, “e-briefs” have other benefits, including searchability and linkability. Applying technology can also make your brief more visually appealing, while improving its navigability and ultimately giving the reader a better experience.

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Because most appeals are won or lost on the briefs, submitting a concise, persuasive, memorable brief is the primary mission of appellate attorneys. Technology can enhance the look and feel of a brief and even small differences in readability can have an impact on the court. One federal appellate court actually states in its practitioner’s handbook, “you can improve your chances by making your briefs typographically superior. It won’t make your arguments better, but it will ensure that judges grasp and retain your points with less struggle. That’s a valuable advantage, which you should seize.”

How to make you brief “typographically superior” for a digital audience, you ask? There are many ways appellate attorneys can employ technology to improve their written work. The good news is that because you are probably already well aware of certain legal writing principles (such as the importance of using clear headings and subheadings to break up large chunks of text and avoiding footnotes which can distract the reader from your argument), adapting your written advocacy to a digital audience does not mean you will have to learn a whole new way of writing. Rather, since these strategies become even more important as we move to a digital world, understanding how technology can be applied to these and other writing conventions is the first step to becoming a tech-savvy appellate practitioner. The next step is checking the court rules for specific requirements and guidelines for digital briefs.

 

Filing of Electronic Briefs Encouraged by Washington Appellate Courts

Many courts are now accepting CD-ROM filings, which are referred to as “companion” or “corresponding” briefs. Washington’s Rules of Appellate Procedure provide that the filing of corresponding briefs on CD is “allowed and encouraged,” as long as certain requirements are met, including the filing of printed briefs. Notice of intent to file corresponding briefs also must be provided and the companion CD must be submitted within 60 days after the final reply brief is filed. While the corresponding brief must be identical in content to the paper brief, it may provide “hypertext links to the report of proceedings and clerks papers and to materials cited in the briefs such as cases, statutes, treatises, law review articles, and similar authorities.” All hyperlinked materials must be included on the disc as well. Other requirements include a statement concerning instructions for viewing the brief and verifying the absence of viruses.

The Washington Supreme Court approves of corresponding filings, expressing “sincere appreciation” for CD-ROM, hyperlinked documents and encouraging attorneys even in “routine appeals” to “seriously consider submitting the record and briefs” in digital format. When a court tells you that filing a digital brief is “encouraged,” that improving the “look” of your brief will “ensure that judges grasp and retain your points with less struggle,” and that you should “seize” the “valuable advantage” it gives you, you would be wise to listen.

 

Effective Brief Writing for a Digital Audience

Digital briefs must be easy to read and to use. Basic technology can enhance the readability and navigability of a e-brief. Here are just a few suggestions:

  • Use substantive headings and subheadings to provide signposts for the reader.

  • Employ other organizational signals such as bullet points or numbered lists.

  • Experiment with fonts, as long as court rules permit it (Washington courts allow Times New Roman, Courier, CG Times, Arial).

  • Use graphics to illustrate a point and break up monotony of text on the screen.

  • Avoid footnotes.

 
While the traditions of appellate brief writing will likely remain, courts are embracing technology that makes the process of reviewing and digesting appellate arguments more efficient.
 
 

Applying any or all of these techniques will go a long way to making your digital brief “typographically superior.” You should also consider using key words and phrases in a way that accommodates computer searches. The judges and law clerks reading your brief may focus on a particular issue (and as you know it may not be the one that you believe the case hinges on) and want to use the “search” function to track the word or phrase (or contract provision, statutory reference, etc.) throughout the brief. With this in mind, you should refer to such key concepts the same way throughout the brief, rather than, for example, using synonyms in an attempt to make your brief sound more elegant.

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Applying more advanced technology, such as inserting hyperlinks into the text of your brief, can also improve the reader’s experience. Washington courts allow “hypertext links to the report of proceedings and clerks papers and to materials cited in the briefs such as cases, statutes, treatises, law review articles, and similar authorities.” Allowing the reader to move easily between your brief and the material it relies on, without having to page through a voluminous paper record or pull cases or statutes from different places, can make a huge difference in how your arguments are received and contemplated by the court. Internal links, such as between the headings in the Table of Contents and those in the text, can also be useful. Keep external hyperlinks to a reasonable amount, however, because too many links can be disruptive to the reading process, and make your brief prone to skimming. You don’t want the reader to spend more time navigating than reading.

 

Technology in the legal space is constantly evolving. Attorneys must educate themselves on the latest capabilities and advancements that impact their practice. While the traditions of appellate brief writing will likely remain, courts are embracing technology that makes the process of reviewing and digesting appellate arguments more efficient. Producing user-friendly digital briefs is the way forward. While the local rules set minimum standards for documents submitted electronically, brief writers can and should take advantage of any available technology that can make their briefs more visually appealing, improve its navigability and the reader experience.

 

How I Can Help You

If you are considering an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an appeal following a loss at trial or on a dispositive motion.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.

How to Appeal a Case in Washington State

If you are considering bringing an appeal, there are important deadlines and detailed procedures that must be followed to the letter. Understanding the structure of the courts, the different methods for seeking review, and the various standards of review is of the utmost importance. Time is of the essence, and one missed deadline can be fatal to an appeal. Working with an appellate attorney who has extensive experience litigating appeals in the courts of Washington State and is well-versed in Washington’s Rules of Appellate Procedure can be the difference between success and failure on appeal. Below is a summary of the key deadlines and basic steps along the path of an appeal.

Structure of Washington Appellate Courts

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Most cases appealed from the state’s trial courts (known as superior courts) go directly to the Court of Appeals. The Court of Appeals has the authority to take various actions; it can reverse the lower court’s decision, send (“remand”) the case back to the lower court, modify the decision, or affirm it.

The Washington Court of Appeals is divided into three divisions, each of which serves a geographic area of the state. Division I, located in downtown Seattle, has ten judges. Division II, located in Tacoma, has seven judges. Division III, located in downtown Spokane, has five judges.

Some cases bypass the Court of Appeals and may go directly to the state’s highest court, the Supreme Court. Examples of issues meriting direct Supreme Court review include actions involving:

  • A state officer;

  • A lower court ruling that a statute or ordinance is unconstitutional;

  • Conflicting statutes or rules of law;

  • An issue of broad public interest requiring a prompt and ultimate determination; or

  • Imposition of the death penalty.

 

Difference between Review as a Matter of Right and Discretionary Review

There are two basic methods for seeking review of trial court decisions.  The first method is review as a matter of right, referred to as “appeal.” The second method is review by permission of the court, called “discretionary review.”  The Rules of Appellate Procedure list 13 types of orders that may be appealed by right, including:

  • Final judgment in an action;

  • Juvenile court disposition;

  • Termination of parental rights;

  • Order of Incompetency;

  • Order of Commitment; or

  • Order on motion for a new trial.

The Rules provide that “unless otherwise prohibited by statute or court rule, a party make seek discretionary review of any act of the superior court not appealable as a matter of right.”  This is a ‘catch-all’ provision, meant to include any superior court order that does not fall into the basket of 13 appealable orders.

Discretionary review will only be accepted if one of the following can be shown:

  • The trial court committed an obvious error which would render further proceedings useless;

  • The trial court has committed probable error and the decision of the court substantially alters the status quo or substantially limits the freedom of a party to act;

  • The trial court has so far departed from the accepted and usual course of judicial proceedings as to call for review by the appellate court; or

  • The trial court has certified, or all parties to the case have agreed, that the order involves a controlling question of law as to which there is a substantial ground for a difference of opinion and immediate review of the order may materially advance the ultimate termination of the case.

Unlike an appeal by right, a party seeking discretionary review must ask (or “move”) the court of appeals to accept the case within 15 days after filing a notice seeking review. The court may refuse, agree to review the entire case, or specify the issue or issues as to which review is granted. “Discretionary” review means just that -- it’s entirely up to the Court of Appeals!

 

Important Deadlines for Appeals

The first step in the appellate process is the filing of a notice of appeal or notice of discretionary review. Generally speaking, either notice must be filed in the trial court within 30 days after the decision being appealed is “entered,” meaning when it is filed with the clerk of the court. In certain limited situations, the 30-day time limit will be extended, such as when one of the parties to the case dies or becomes legally incompetent and needs to be substituted by a representative, another party has filed a notice of appeal or notice of discretionary review, or the applicable statute provides for a different time period.

 
The rarity of oral argument places utmost emphasis on the brief-writing stage. This is where working with an experienced appellate attorney can make the difference between success and failure on appeal.
 
 

The next step is compiling the “record for review” and sending it the Court of Appeals. The record for review is the “evidence” the appellant will rely on to convince the Court of Appeals that their argument should carry the day. The record, generally speaking, exists in two parts. The first part is the “clerk’s papers,” which are all the essential pleadings, written testimony, exhibits, and other documents filed with the superior court. The second is the “report of proceedings,” which is a transcript of the oral testimony and argument heard by the superior court.

An appellant generally must begin this record-forwarding process within 30 days of the date the appeal was filed or the date the court granted discretionary review. After the record is set, next comes the brief-writing stage. Within 45 days after the report is filed, the appellant must file a brief setting forth a persuasive argument, based on the facts and relevant law, for why the trial court’s decision was wrong and should be reversed or modified -- all in a maximum of 50 double-spaced, large-margined pages. The opposing side (referred to as the “respondent”) then has 30 days to file a responding brief. 30 days later, the appellant may file a “reply” brief, replying to the arguments in the respondent’s brief. The Appellate Rules state the the reply brief is optional, but experienced appellate practitioners will almost always recommend that the appellant file a reply. After all, why pass up the opportunity to have the last word in an argument?

 

The next step is oral argument before a panel of three appellate judges, if permitted. Opportunities for oral argument are rare, with most appeals decided “on the briefs,” that is, without the chance to discuss the appeal live and in-person with a group of judges. The court will then issue its decision, called on “opinion.” There is no time limit for the court to do so; some opinions are issued in 6 or 8 weeks, while others may take more than a year.

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The rarity of oral argument places utmost emphasis on the brief-writing stage. This is where working with an experienced appellate attorney can make the difference between success and failure on appeal. Busy trial attorneys may, mistakenly, approach an appeal by simply recycling trial court arguments and offering them to the appellate courts. Appellate judges uniformly classify this type of brief as a “substandard product.” As the California Court of Appeals has stated, “rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.” In other words, the rhetorical skills required to convince a fact-finder at trial are far different those those necessary to succeed on appeal.

If the decision is unfavorable to the appellant, there are several options to consider, including filing a:

  • Motion to reconsider (must be filed within 20 days); or

  • Petition for review by the Supreme Court (must be filed within 30 days)

 

Basic Path of an Appeal in Washington State

The process of appealing a case begins with the notice of appeal or notice of discretionary review, and ends with the court’s decision. In between, the typical path includes compiling the record, exchanging briefs, arguing the case before an appellate panel, and awaiting the court’s decision. There may be twists and turns along the way, in the form of different procedural motions for, among other things, extensions of time, staying the trial pending appeal, accelerating review, and attorneys fees. The court may also schedule, on its own or at the request of the parties, a conference to discuss the possibility of settling the case, rather than going forward with the appeal. Experienced appellate practitioners are familiar with each of these twists and turns and can help busy trial lawyers and their clients navigate the unique appellate process.

How I Can Help You

If you are considering an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an appeal following a loss at trial or on a dispositive motion.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.

Why Trial Lawyers Should Not Handle Their Own Appeals

Following an adverse outcome at trial or on a dispositive motion, trial lawyers may be tempted to take on their client’s appeal. After all, who knows the case better than the attorney who has lived with it from the beginning? A sense of pride and a desire to right perceived wrongs may come into play as well. However, there are many reasons why trial lawyers should not do their own appeals, including the risk that tunnel vision will prevent trial counsel from seeing other potential theories and issues in the case, as well as the fact that trying cases and appealing them require different skill sets and knowledge of different procedural areas of law. For these reasons, the best thing busy trial attorneys can do for their client’s appeal is to consider bringing in appellate counsel.

Appellate Attorneys Bring a Fresh Set of Eyes to a Case

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It is often said that introducing a fresh set of eyes to a problem is a great way to find a solution. The same can be said for an appeal. Not only do appellate attorneys come to a case with no preconceived notions or past experience with the case, but they also come with the ability to spot appellate issues where trial lawyers might not even think to look. What is more, the client will likely receive a more objective assessment of the merits of an appeal from an appellate attorney who has not lived through the case like the trial lawyer has.

Trial lawyers approach their cases a certain way. They develop and communicate a core theory to the fact-finder, whether it is a judge or a jury. This makes for a strong, focused presentation at trial, but invariably results in other potential legal theories or issues being missed or given little attention. This can be problematic for a trial attorney on appeal, because the appellate judges reviewing the case - who are invariably more legally sophisticated and intelligent than the average lay jury - may be more interested in an entirely different theory than what was relied on at trial. The trial attorney may be unprepared to address the “new” and potentially nuanced legal theory, having ignored it at trial. Appellate attorneys are adept at mastering the often voluminous trial record; researching legal principles, however obscure; understanding subtle distinctions and emerging legal trends; and bringing everything together into a concise, persuasively written brief.

 

Trial Lawyers Are Not Always Expert Writers

Just as trying a case requires a particular skill set, appellate litigation is a unique area of a practice requiring specific skills. While trial attorneys often excel at ferreting out information through discovery, questioning witnesses and making spontaneous tactical decisions in court, they are not necessarily strong writers. Often an appeal is decided “on the briefs,” without the opportunity for oral argument, so an appellate lawyer must be, first and foremost, a skilled writer. By contrast, few trial lawyers are likely to attribute their success at trial to their writing ability.

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In addition to requiring different skill sets, trials and appeals are directed to different audiences. Arguing a case before a jury is very different from arguing a case before a panel of appellate judges. Arguments that might persuade a lay jury have little relevance in an appellate court. Rather than arguing factual matters and credibility determinations, as is the case during trial, appellate advocacy involves presenting specific legal arguments concerning rulings made by the trial judge, the jury instructions, and other questions of law. The outcome of an appeal will be a determination as to whether the law was applied correctly during trial or in a dispositive motion.

Because appellate courts focus primarily on questions of law, not on questions of fact like the trial courts, the arguments an appellate attorney presents in the brief, and in oral argument where permitted, will be very different than those made during trial. During oral argument before a panel of judges, appellate attorneys are often called open to address hypotheticals, distinguish cases, respond to intricate statutory or contract construction inquires, and discuss broad public policy issues. Sometimes judges ask questions that seem out of left field. To respond, appellate attorneys must know ALL of the applicable case law and how it applies to the facts of the case and be able to discuss it with the judges with eloquence and sharp wit. Thus, preparing for an appellate argument is very different from preparing for trial. Indeed, many appellate judges have expressed frustration with attorneys who treat an appeal as just another court hearing. Even the most gifted trial lawyers may not appreciate that appeals demand an entirely different approach than trials.

 

Appellate Lawyers are Knowledgeable on the Relevant Procedural Rules

The appellate process is different from the trial process. Mounting an appeal is a multi-step process, consisting of:

  • Timely filing a Notice of Appeal or Notice of Discretionary Review;

  • Compiling and scrutinizing the record for potential appellate issues;

  • Researching and writing the appellate brief; and

  • Preparing for oral argument, if necessary.

To bring an appeal, a practitioner must be well-versed in the local rules of appellate procedure.  There are important deadlines and very specific requirements for appellate filings, which can be fatal to an appeal if not followed.  Experienced appellate attorneys have been through what is often a lengthy process many times, and can walk clients through the various steps and answer any questions they have along the way.  A successful appeal also requires knowledge of:

  • The relevant standard of review on appeal;

  • Appellate law, both procedural and substantive; and

  • Backgrounds and personalities of the appellate judges who will hear the case, including how they have ruled on cases similar to yours and whether the court is a “hot bench” that will pepper counsel with questions.

Experienced appellate attorneys also keep up on changes to the rules of appellate procedure and closely examine the written opinions of the appellate judges, learning their tendencies and preferences. Trial attorneys can often be “out lawyered” by experienced appellate practitioners who have near-rote knowledge of the appellate rules and the habits of the appellate judges.

 
Many busy trial lawyers lack the time and patience for the thoughtful reflection and deliberate, meticulous analysis of the law required to develop a compelling appellate argument.
 
 

Trial Lawyers are Busy

A successful appellate attorney is a highly-skilled brief writer who is able to distill the thousands of pages of trial transcripts - plus exhibits - into a single, highly persuasive document. Many busy trial lawyers lack the time and patience for the thoughtful reflection and deliberate, meticulous analysis of the law required to develop a compelling appellate argument.

Bringing in appellate counsel to handle your appeal will serve your client well. You will be able to do what you do best as a trial lawyer, while we can do what we do best as appellate advocates. Of course your insight from the trial is invaluable, so appellate attorneys expect to work with you to identify potential errors and keep you involved in the appellate process as much or as little as you want to be. At the end of the day they are your clients, and we are always mindful of that.

How I Can Help You

If these reasons trial lawyers should not do their own appeals have made you think twice about handling an appeal on your own, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an appeal following a loss at trial or on a dispositive motion.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

The Importance of Storytelling in Appellate Advocacy

The ability to narrate a compelling story is a useful skill in law, just as it is in business. While it has long been recognized, particularly in the litigation space, that the best lawyers are great storytellers, over the past decade Legal Storytelling has made its way into law school curricula and has been the subject of academic conferences in the U.S. and abroad. Beginning in 2007, a movement known as “Applied Legal Storytelling” was launched when a group of legal academics from around the world gathered in London to discuss the uses of storytelling in the law. While most trial lawyers would characterize themselves as storytellers, the importance of storytelling in appellate advocacy cannot be overstated. From drafting a persuasive brief to making a strong presentation at oral argument, narrative elements - including character, setting, theme, and plot - are key to the success of an appellate practitioner. After all, effective storytelling goes hand in hand with persuasion.

Appellate Briefs Should Include Both Logic and Story

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Fundamentally speaking, a lawyer’s job is to tell a story; the client’s story. Whether in the setting of a trial, a contract negotiation, preparation of a will, or an appeal, the elements of storytelling come into play. As with any good story, there are compelling characters, an interesting plot, and central themes. There is conflict and ultimately a requested resolution - the client’s “happy ending.”

The goal of any appeal is to convince the court that one side of the story is the right one. Most litigation comes down to a “battle of the narratives,” with the best “story” winning. Thus, in addition to setting forth a logical analysis of the law, an appellate brief should also tell a story. Narrative elements such as setting, character, and theme should be woven into both the factual presentation and the legal argument. The statement of facts should read like a good story, with the setting and characters being introduced and the conflict unfolding. Quotes and testimony excerpts should be included, so the parties to the case and the witnesses can speak for themselves, much like compelling dialogue in a screenplay. The legal setting, meaning the legal and regulatory framework at issue, should be methodically laid out. The plot develops through the legal argument, with the ending of the story - the client’s requested resolution of the case - coming as no surprise. In other words, if the appellate attorney has told a good story, supported by logical legal analysis, the court should know exactly what the client is asking for and why.

Legal briefs have a reputation for being dry, even boring. Employing storytelling techniques will bring an appeal to life. Dramatic literary concepts such as exposition, rising and falling action, climax, and denouement can bring life to an otherwise dull set of facts. Furthermore, an appellate attorney who tells a compelling and believable story, well supported by legal authority, invariably gains credibility with the judges hearing the case.

 

Like a Good Story, an Appeal Should Have a Central Theme

The judges deciding the appeal will want to know, in the clearest terms, what the case is about. With that in mind, a successful appellate brief identifies and enunciates the narrative at the heart of the case as early as possible. Once the theme of the case is set forth, the story is able to unfold in a more logical and coherent way. While the plot (the legal argument) may twist and turn, the case always comes back to its central theme. Moreover, having a clear focus as the story is being told makes it all the more compelling to hear, and less prone to distraction, which, as anyone who has suffered through a meandering tale with no apparent point can attest to, can ruin a good story. The same is true of an appellate brief or oral argument that lacks a central theme or focus. Most judges prefer an appellate brief that is written as “an essay with a clear train of thought” over a brief written as “a repository of all the information that a curious judge might want to know about.” (Garner, Judges on Briefing: A National Survey, 8 Scribes J. Leg. Writing 1 (2002)).

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Applying storytelling techniques to appellate practice involves looking at the big picture of the case and identifying an overarching theme, then weaving that theme throughout the brief, in the factual summary, as well as the legal argument. This is a valuable exercise for any appellate practitioner, as a story with a clear theme, in which everything that happens relates back to the theme, makes for a compelling read.

 

The Human Aspects of a Controversy Should Not be Forgotten

All legal disputes involve some sort of human conflict. While appellate judges do not want to feel emotionally persuaded or manipulated, they do want to hear the client’s story. More important, appellate advocates serve their clients well when they give the judges a reason, on a human level, to decide cases in their favor. Where appropriate, presenting an emotional appeal, well grounded in law and logic, is the best way to capture the attention of appellate judges. Subtly portraying the client as the protagonist of the story, and the opposing party as the antagonist, is another way to engender sympathy using storytelling techniques.

The clients themselves should be as much a part of the story as the legal analysis. The reader (the court) wants to know how the conflict arose and how it can be, or should be, resolved. Approaching an appellate brief as a story about people (whether individual or corporate), rather than solely as a piece of technical writing, is sure to make it more interesting to its audience, and therefore, more persuasive. A study done by law professor Kenneth D. Chestek, a frequent writer on the subject of legal storytelling, concluded that “stories are indeed persuasive to appellate judges.” (Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, Journal of the Association of Legal Writing Directors, Vol 7, No. 1 (2010)).

 
An appellate brief that tells a story is sure to resonate with the court on both an intellectual and an emotional level.
 
 

Verbosity Can Kill a Good Appellate Story

As is the case with storytellers, some lawyers fall into the trap of saying too much. With effective storytelling, it is the quality, not the quantity of words, that counts. Often, less is more. While the temptation on appeal may be to overinclude facts and to present every possible argument, regardless of its strength, material that is unrelated to the story being told will only serve to distract the reader. Indeed, a skilled appellate lawyer should be able to distill the voluminous record down to a concise presentation that ends well short of the court’s page limitations.

An appellate brief that tells a story, using narrative techniques such as theme, character, setting, and plot, to present the facts and apply the relevant legal framework, is sure to resonate with the court on both an intellectual and an emotional level. In addition to being a powerful tool of persuasion, storytelling in appellate advocacy brings a level of humanity and authenticity into the legal process, which in the long run is certainly a worthwhile goal.

Let An Appellate Attorney Tell Your Client’s Story

If you are contemplating an appeal following a loss at trial or on a dispositive motion, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

Five Reasons to Hire an Appellate Attorney

Following a loss at trial, the first question a client is likely to ask is “can we appeal?” Answering that question requires a careful analysis of both the facts of the case and the relevant law, as well as an understanding of the procedural requirements for bringing an appeal in the client’s jurisdiction. Knowledge of the particular appellate court and its judges should also be brought to bear on the decision whether an appeal is likely to succeed. While some trial lawyers may be tempted to handle the client’s appeal themselves, there are many reasons to hire an appellate attorney to prepare your appeal. Here are my Top Five.

Appellate Lawyers and Trial Lawyers Have Different Skill Sets

While trial attorneys and appellate practitioners share many of the same attributes — they are inquisitive, organized and detail-oriented, and are good communicators and problem solvers — the skills needed for a successful appeal are very different from those required for a trial. A trial involves questioning witnesses, introducing evidence, and arguing the case to the fact finder, whether it be a jury or a judge. Trial lawyers must be skilled at cross-examining witnesses and adept at making complex facts seem simple, especially in front of a lay jury. Trials are mostly about facts, and the job of a trial lawyer is to convince the jury or judge (in the case of a bench trial) that his or her version of the facts is the right one.

 
Appellate brief writing is a specific skill in which an often voluminous trial record must be distilled down to a concise presentation.
 

An appeal is mostly about how the law was applied to the facts, and involves an entirely different process. The trial record must be carefully reviewed and analyzed for errors. The primary job of an appellate attorney is to prepare a comprehensive brief, setting forth a persuasive legal argument, well-supported by case law and the applicable statutory or regulatory framework. Most appeals are won or lost “on the briefs,” so an appellate lawyer must be, first and foremost, a skilled writer. By contrast, few trial lawyers are likely to attribute their success at trial to their writing ability. Furthermore, appellate brief writing is a specific skill in which an often voluminous trial record must be distilled down to a concise presentation.

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Unlike trial, the focus on appeal shifts from developing and presenting facts to:

  • Mastering the record;

  • Researching legal principles, both procedural and substantive;

  • Understanding subtle legal distinctions and emerging legal trends;

  • Exploring creative analogies; and

  • Guiding policy considerations to shape or change law.

Because appellate practice and trial practice require different skills, you should consider hiring an appellate attorney to handle your appeal.

Appellate Lawyers Bring Fresh Perspective to a Case

If your case has reached the stage where you are considering an appeal, chances are you have been eating, breathing, and sleeping the case for many months or even years. As a result, you may have “tunnel vision” and the best thing you can do for your client is to bring in a fresh set of eyes. Trial lawyers approach their cases a certain way. They develop and communicate a core theory to the fact-finder. This makes for a strong case, but invariably results in other potential theories or issues being missed or given little attention. This can be problematic for a trial attorney on appeal, because the judges reviewing the case may be more interested in an entirely different theory than what was relied on at trial. The trial attorney may be unprepared to address the “new” theory, having ignored it at trial.

Appellate lawyers bring a new perspective to a case, one informed by experience searching the trial record for any and all potential errors or issues to appeal. They are likely to see things in the record that trial attorneys are unable to see because they are too close to or too vested in the case, and, unlike experienced appellate attorneys, may not even know what to look for in analyzing a record. What is more, your client will likely receive a more objective assessment of the merits of an appeal from an appellate attorney who has not lived through the case like you have.

Trial Lawyers and Appellate Lawyers Have Different Audiences

Arguing a case before a jury is very different from arguing a case before a panel of appellate judges. Arguments that might persuade a lay jury have little relevance in an appellate court. Rather than arguing factual matters and credibility determinations, as is the case during trial, appellate advocacy involves presenting specific legal arguments concerning rulings made by the trial judge, the jury instructions, and other questions of law. The outcome of an appeal will be a determination as to whether the law was applied correctly during trial or in a dispositive motion.

Because appellate courts focus on questions of law, not on questions of fact like the trial courts, the arguments an appellate attorney presents in the brief, and in oral argument where permitted, will be very different than those made during trial. During oral argument before a panel of judges, appellate attorneys are often called open to address hypotheticals, distinguish cases, respond to intricate statutory or contract construction inquires, and discuss broad public policy issues. Sometimes judges ask questions that seem out of left field. Preparing for an appellate argument is very different from preparing for trial. No one asks questions during your opening arguments or your summations.

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Trial Lawyers are Busy

Most trial attorneys have busy schedules, often going from one trial to the next, with court appearances, depositions, discovery, client meetings and travel scheduled in between. This can leave little time for the thoughtful reflection, exhaustive research, and precise, persuasive writing that effective appellate representation demands. Mounting an appeal is a multi-step process, comprised of:

  • Timely filing a Notice of Appeal or Notice of Discretionary Review;

  • Compiling and scrutinizing the record for potential appellate issues;

  • Researching and writing the appellate brief; and

  • Preparing for oral argument, if necessary.

Bringing in appellate counsel to handle your appeal will serve your client well. You will be able to do what you do best as a trial lawyer, while we can do what we do best as appellate counsel. Of course your insight from the trial is invaluable, so appellate attorneys expect to work with you to identify potential errors, and keep you involved in the appellate process as much or as little as you want to be. At the end of the day they are your clients, and we are always mindful of that.

Appellate Attorneys are Familiar with Appellate Courts and Knowledgeable on Appellate Law

To bring an appeal, a practitioner must be well-versed in the local rules of appellate procedure. There are important deadlines and specific requirements for appellate filings, that can be fatal to an appeal if missed. Experienced appellate attorneys have been through what is often a lengthy process many times, and can walk your client through the various steps of an appeal and answer any questions they have along the way. A successful appeal also requires knowledge of:

  • The relevant standard of review on appeal;

  • Appellate law, both procedural and substantive; and

  • Backgrounds and personalities of the appellate judges who will hear the case, including how they have ruled on cases similar to yours and whether the court is a “hot bench” that will pepper counsel with questions.

How i Can Help You

If these reasons to hire an appellate attorney have made you think twice about handling an appeal on your own, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you if you are contemplating an appeal following a loss at trial or on a dispositive motion.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

Opportunities Abound in Local Opportunity Zones

Congress made several significant changes to the individual income tax when it passed the Tax Cuts and Jobs Act of 2017. The creation of the Opportunity Zone program is among these changes. This law, codified in the Internal Revenue Code, creates tax breaks and incentives for those who invest their money into designated “opportunity” zones. In short, the Opportunity Zone program is an economic development tool designed to spur economic development and job creation in distressed communities. An Opportunity Zone is a designated economically-distressed area where new investments, under certain conditions, may be eligible for preferential tax treatment. Our local officials in Chelan and Douglas County proactively sought the designation of a large number of properties within each of the counties as Opportunity Zones, which requests were ultimately approved by Governor Inslee among a total of 139 census tracts approved as Opportunity Zones in 36 counties within Washington. You can find these properties through this mapping feature.

In order to invest within an Opportunity Zone and qualify for these new tax breaks, an investor must first form a Qualified Opportunity Fund (“QOF”), which can be either a partnership (including limited liability companies) or a corporation. This fund is the vehicle which then makes the investments in the eligible property located in an Opportunity Zone. The tax benefits for these investments are reminiscent of the benefits associated with 1031 exchanges, but with the potential for even more advantageous tax breaks.


Deferring Tax on Capital Gains

Investors into Opportunity Zones can defer tax on prior capital gains invested into a QOF until the earlier of the date on which the investment in the QOF is sold, or December 31, 2026.

  • If the QOF is held for longer than five years, there is a 10% exclusion on the deferred gain

  • If the QOF is held for longer than seven years, there is an additional 5% (for a total of 15%) exclusion on capital gain

  • If the investor holds the investment in the QOF for at least ten years, the investor is eligible for an increase in basis of the QOF investment equal to its fair market value – meaning that there would be no capital gains tax levied at all.


Requirements

In order to take advantage of the deferral, there are a few requirements.

  • The 180-Day Window. The investment into the QOF must be made within 180 days of the sale of other property. An investor cannot utilize the Opportunity Zone program if they already have the cash and simply want to invest. There has to be a triggering sale of property with capital gains and then a reinvestment of those funds within the 180-day window.

  • The Fund. The fund has to be set up in accordance with the Internal Revenue Code and the recently released proposed regulations. As noted above, the fund can be a partnership tax entity or a corporation. The QOF must designate a fund manager.

  • The Investment. The QOF must use at least 90% of the funds it receives to invest in qualifying property within an Opportunity Zone. The investment must improve existing property and/or consist of a new build. The investment can also be made into a new or existing business that is located within an Opportunity Zone.

  • The December 31, 2026 Window. The capital gains exclusion incentives are based on the length of time that the investment is held and time-capped as of the end of 2026. An investor can still invest in 2019 in order to hit the seven year window of time for exclusion of capital gains.


Conclusion

The tax breaks associated with the investment into Opportunity Zones could have a lasting impact on many taxpayers. An investor does not need to create their own fund and there are many funds all over the country, which are currently formed and trying to raise capital. If you are a property or business owner that has been considering a sale that would trigger capital gains, now may be a great time to sell and reinvest those funds into a QOF fund. On the flip side, if you are a property or business owner located in an Opportunity Zone, you should consider leveraging these tax incentives to get new investors. The Opportunity Zone regulations are complex. Investors considering the Opportunity Zone Program should consult with their attorney and tax adviser to ensure full compliance with the rules and regulations in order to achieve the maximum tax benefits contemplated under the Act.

Email Lindsey J. Weidenbach or Michelle A. Green at JDSA Law for assistance or call (509) 662-3685.