Don’t Wait for the Appeal to Bring in Appellate Counsel

New York Law Journal

Clients’ views of specialized appellate counsel have evolved rapidly over the last several decades. Not long ago, clients stuck with their trial counsel on appeal, win or lose below. But now clients—and the trial lawyers representing them—recognize that using “appellate specialists” for appeals is the best practice. Particularly in must-win cases, savvy clients appreciate the importance of bringing in separate counsel for the appeal, especially after a loss but even after a win. Top-notch brief writing, a focus on big-picture legal issues and legal trends, a legal strategy revamped as a result of a fresh look at the case, and a deep understanding of how appellate judges think and what arguments are most likely to move them are just some of the many benefits that sophisticated general counsel have come to expect from appellate counsel on appeal.

To be sure, appellate counsel often work miracles, resuscitating on appeal cases that have long been dead and buried. But why wait for the appeal? It is far easier to preserve a win on appeal, than to overturn a loss. And sometimes not even the best appellate counsel can save a case that has already gone horribly awry. Yet comparatively few clients have made it a practice to bring in appellate counsel long before the case ever heads to appeal. For a host of reasons, embedding appellate counsel early on trial teams, especially in the run-up to and during trial, can improve your chances of winning not just on appeal but in the trial court and at the negotiating table. Just some of the benefits of appellate attorneys on trial teams are discussed below.

Writing briefs. This comes as no surprise. Appellate specialists are brief writers by trade; it’s what we do. Including expert brief writers in trial teams will enhance the quality of the briefing, whether on dispositive motions, motions in limine, or mid- or post-trial motions. In addition, with appellate lawyers handling the briefing, the trial team can focus on fact-gathering, fact-development, and trial prep. Appellate specialists are also highly attuned to preservation issues. Having appellate counsel run the briefing will ensure those arguments are clearly made and preserved on the record. And, as an added bonus, involving appellate folks in the briefing early in the case enhances efficiency by getting the appellate team up to speed and integrated with the trial team in advance of an appeal.

Keeping track of the big picture. Trials are hectic. In the run-up to trial, adding appellate counsel brings in not only another set of hands, but another set of eyes and ears that can focus on the big picture, rather than the day-by-day minutia. In the courtroom, appellate counsel can focus on important discrete issues, such as pivotal legal and evidentiary questions, whether the elements of proof have been satisfied, and preservation. Out of the courtroom, while trial counsel is frantically prepping for tomorrow, the appellate team can work on pocket briefs, mid-trial motions, and post-trial briefing. The appellate team can also keep a running list of each side’s potential appellate issues, both in preparation for appeal and to gauge potential appellate risk when it comes to settlement discussions.

Crafting jury instructions. There might be no more challenging element to trial preparation than jury instructions. The goal of jury instruction briefing is to influence the court’s ultimate instructions, ideally persuading the court to adopt your proposed instructions, and, barring that, preserving critical instruction issues for appeal. There is a fine and critical distinction between appearing biased and proposing instructions that advocate without a hint of overt partisanship. Appellate lawyers, by trade and training, can craft proposed instructions that often appear more even-handed than their trial counsel counterparts, who have lived and breathed the case for years. At the charging conference, when preservation is paramount, appellate lawyers will more easily be able to stand their ground against a bullying judge without the fear that trial counsel might have of judicial retribution in front of the jury at trial.

Sending a message. In addition to standing up to the judge, giving appellate counsel a prominent role during trial proceedings can signal to the judge just how important the case is to the client. No one wants to be told they erred, most of all trial judges by way of an appellate opinion reversing them. Having appellate counsel on the team brings home that reality to a trial judge by signaling that the party is serious and contemplating appellate review, if necessary. The very presence of appellate counsel may well give the trial judge a moment of pause. Meanwhile, opposing counsel is likely to realize that the client is not an easy mark, willing to settle. Appellate consiglieres signal the client is prepared for a long, drawn-out war.

Perfecting the record for appeal. It goes without saying that if a piece of evidence wasn’t admitted at trial, it cannot be used on appeal. But there are other, grayer shades of evidentiary issues where appellate lawyers can help. How can you make sure those beautiful demonstratives you spent thousands of dollars commissioning can be used on appeal? What must you do so that the transcript of video depositions played at trial, but not transcribed in the record, are nevertheless easily accessible to the court on appeal? How can you prove the prejudice from the mid-trial exclusion of critical evidence that you planned to offer? Appellate advocates know the answers to these questions.

Positioning appellate arguments. Courts of appeals review without deference legal determinations from the trial court and review with varying degrees of deference a judge’s exercise of discretion, judicial fact-finding, and jury verdicts. Positioning arguments in the trial court in such a way as to make the decisions appear more legal and less discretionary or factual is critical to the success of those arguments on appeal. The failure to be attuned to how certain issues will be litigated on appeal could be the difference between winning an appeal and obtaining the most unsatisfying of all appellate decisions: one where the appellate court agrees with your argument but nevertheless rules against you due to the deferential standard of review.

Avoiding groupthink. The trial team is, and must be, focused on winning the trial. The appellate team, while cognizant of winning the trial, must also be focused on how to win the appeal. Sometimes what’s right for trial isn’t what’s right for appeal. Trial teams often like general verdict forms so they can win one question and win the case. But a more particularized special verdict form is far better for appeal. Similarly, a trial team may not want to make a particular objection, knowing the judge is likely to deny it and the jury may well read something negative into the objection or the court’s ruling. The appellate team might conclude such an objection is vital to an issue for appeal. Who is right is a question for the client, but these issues may never be teed up to the client if there isn’t an appellate team involved to consider the issue from a different perspective.

One final thing to consider: While embedding appellate counsel in trial teams is an excellent first step, the benefits could well be muted if the appellate team’s advice never gets to the client because trial and appellate lawyers from a single firm hash out the issue internally and propose only one course of action to the client. Using appellate counsel from another firm ensures that the issue will reach the client. To be sure, nobody wants unnecessary fighting among firms at trial, and so it is critical to pick appellate counsel who plays well with others, understands its role, and is deferential to the trial team and trial concerns when appropriate. But the benefits of independent appellate counsel are hard to overstate when the stakes are the highest.

Concededly adding additional lawyers to a matter is not a cost-free proposition, at least not on cases with hourly billing. But proper planning and staffing could alter the size of the trial team to reflect the role the appellate lawyers will play in briefing and strategic considerations. Early integration of appellate counsel also creates efficiencies when the case gets to appeal. And, embedding appellate counsel, with all the attendant benefits, may be the cheapest insurance policy for the case that a client can buy. It may be that involving appellate counsel may not make sense for every case, just for the ones a party wants to put itself in the best chance of winning—whether in the trial court or on appeal.

Andrew Silverman is a New York-based partner in Orrick, Herrington & Sutcliffe’s Supreme Court and appellate practice group. Matt Shahabian is an associate in the appellate practice group.

Reprinted with permission from the April 6, 2018 edition of the New York Law Journal © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected].