Appellate Practice
Winter 2020, Vol. 39 No. 2
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8
March 05, 2020
Facing Goliath: Litigating Appeals Against the
Government
The government is afforded remarkable privileges not
available to private litigants.
By Tyce R. Walters
As many appellate practitioners know all too well, the experience of litigating against the
government differs considerably from that of litigating against private parties. Although the
government is held to a high standard by the courts, it is also afforded remarkable
privileges not available to private litigants. Depending on the substance of the appeal, the
government may have legal arguments at its disposal of which private litigants can only
dream—as well as unique vulnerabilities. And as the ultimate repeat player, the
government’s strategic and tactical choices will frequently differ from those of a party
seeking only to prevail in a particular case.
Some appellate practitioners—especially those who face off against the government
regularly or who are alumni of government offices themselves—will already be familiar
with everything from the U.S. Department of Justice (DOJ) process for seeking approval to
appeal adverse decisions to the finer points of the informational standing doctrine. But
many others deal with the government only on rare occasions.
After leaving the DOJ, I was surprised to see how many capable advocates have only a
passing familiarity with the challenges and opportunities presented when litigating appeals
against the government. Below are a few pointers that may be helpful to such attorneys.
(While these points are most applicable to the federal government, many will also apply to
state and local governments.)
Presumption of Regularity
The government’s single greatest advantage is the respect afforded it by the courts. That
advantage manifests in a variety of ways—from judicial doctrines of administrative
deference to an informal willingness to take the government’s factual representations at
face value. Opposing advocates should try either to fight on terrain to which this deference
does not apply or to nullify it in some manner.
