Law360, New York (November 24, 2009) -- Doug Leak is an appellate partner at Roetzel & Andress LPA. His practice focuses on medical malpractice issues, personal injury and declaratory judgment actions involving insurance carriers. He also has a comprehensive appellate law practice. Leak's clients have included physicians, major medical institutions and hospitals.
Q: What is the most challenging case you have worked on and why?
A: The most challenging appellate case I have handled involved an appeal to the Ohio Supreme Court in a medical malpractice case. My partner received a defense verdict at the trial court level and then the Court of Appeals reversed the defense verdict and remanded the case for a new trial. The appellate issue involved whether the jury should have been instructed on the doctrine of res ipsa loquitur -- "the thing speaks for itself."
The appellate court believed that the jury should have been instructed on res ipsa loquitur because the plaintiff's experts opined that the injury at hand could only have occurred as a result of negligence. I filed a Notice of Appeal to the Ohio Supreme Court and the court accepted jurisdiction over the case. Appeals to the Ohio Supreme Court are discretionary and the court only accepts about 8 percent of civil matters. The fact that the Ohio Supreme Court accepted jurisdiction was a thrill but I needed to convince the court that the Court of Appeals created bad law with respect to res ipsa loquitur in medical malpractice cases. I briefed and orally argued the case before the Ohio Supreme Court.
Q: What do you do to prepare for oral argument?
A: I always do my oral arguments without notes. So, this means I have to prepare an oral argument outline, practice my presentation and literally memorize my presentation. I have found it much more valuable if I do my oral presentation without notes because I am able to make better eye contact with the appellate panel. Although it is risky to do this by memory, a lot of preparation and practicing has proven to be successful.
The most important aspect of preparing for an oral argument is to know references to the record and all of the case law cited in all of the appellate briefs. You must always be prepared to field any questions from the appellate panel and appellate judges love to make specific inquiries about what is contained in the record and what legal authorities support or do not support your position.
Q: What are some of the biggest problems with the U.S. appeals process?
A: My only problem with appellate courts is when I feel like the appellate court does not stick to the legal issues and renders an opinion that appears more "result oriented." For instance, I have had oral arguments where there is only a legal issue, but the appellate panel goes off on a tangent and discusses the facts of the case as opposed to strictly sticking to the legal issues. This is my only issue that I have had with some appellate courts.
Q: Aside for your own cases, which cases currently on the appeal are you following closely, and why?
A: In my practice of handling a lot of medical malpractice appellate cases, I am currently following two hot subjects in Ohio. The most important case before the Ohio Supreme Court involves Ohio's collateral source rule and whether "write-offs" of medical bills are admissible at the time of trial. The trial courts throughout Ohio have been split on this issue and I anticipate that the Ohio Supreme Court will finally clarify this issue for everyone.
I have also been following a lot of appellate cases involving the confidentiality of medical records of nonparty patients. There are several cases in which plaintiffs have attempted to obtain the medical records of nonparties in order to prove their own case of medical negligence. The Ohio Supreme Court recently held that the medical records of nonparties are absolutely protected and, thus, there are several cases throughout Ohio that will be affected one way or the other by the Supreme Court's decision.
Q: Outside your own firm, name one lawyer who has impressed you and tell us why.
A: Irene Keyse-Walker is an appellate attorney that has impressed me over the years. I have attended seminars where Irene has been an instructor/speaker and she has always proven to be an excellent source of information. More importantly, I have worked with Irene on several appellate cases and I have always been impressed with her appellate law knowledge, experience and success.
Q: What advice would you give to a young lawyer interested in getting into your practice area?
A: My best advice for someone who wants to get involved in the area of appellate law is to first clerk for an appellate judge. I had the benefit of clerking at the The Eighth District Court of Appeals in Cleveland, Ohio, for two legendary judges -- Judge John V. Corrigan and Judge Leo Spellacy. I learned a lot from these two judges and my job responsibilities included legal research, writing, etc. This experience propelled me into the practice of appellate law.