Supreme Court and Appellate ‘Issues’ in Trial Court

A distinguishing feature of Orrick’s Supreme Court & Appellate practice is that its lawyers often work on cases long before appeal, and sometimes as a way to prevent appeal altogether. We call this law-intensive, trial-level dimension of our practice “Issues” work.

As appellate lawyers, our specialties are legal strategy and writing; simplifying complex factual, technical, and legal concepts and making them simple and straightforward; providing a deep understanding of how appellate judges will approach and react to certain issues and arguments so that those issues can be teed up in the best possible posture; and perfecting a case for appeal. These attributes are just as valuable in the trial court as on appeal.

We work on all law-intensive aspects of a case.  We specialize, in particular, in pre-trial, trial, and post-trial strategy; dispositive motions; procedural motions (including jurisdictional and venue objections); writs of mandamus and interlocutory appeals; jury instructions and objections; motions in limine and Dauberts; preservation of issues and objections for appeal; and mid-trial and post-trial motions and objections.

In the three years prior to COVID-19, Orrick’s appellate lawyers worked on
more than 100 trial-level matters

Orrick appellate lawyers have had a huge impact on trial-level matters, adding value in unique ways that helped win the case in the trial court or set up the win on appeal. Here are some advantages of bringing Orrick’s expert appellate counsel into your trial court matters:

  • Un-waiving waived issues. It was discovered after Orrick appellate attorneys were brought onto a case after the trial that the single best argument to overturn the jury verdict had been waived by an insufficient pre-verdict motion for directed verdict. We urged the trial team to ignore the waiver and proceed with its post-verdict motion. When the plaintiffs failed to raise waiver in response, the waiver was waived; our argument had been laundered through the post-trial briefing, and the substantive issue was once again live for appeal.
    • Aggressively pursuing threshold motions that avoid costly discovery. In one multibillion-dollar litigation and another case that threatened to upend an entire industry, Orrick appellate lawyers embedded from the outset urged the client—over co-counsel’s objection—to file threshold dispositive motions. In both cases, the strategy succeeded, the motion was granted, and the clients averted years of costly and irrelevant discovery that would have served only to give the other side an opportunity to disrupt the client’s business and manufacture a dispute in order to force the case to trial.
    • Elevating conflicting strategy calls on critical issues to the client. In a high-stakes trial, the plaintiffs impermissibly changed their theory of the case in opening statement to one that was undisclosed and contrary to their disclosed theory. Orrick appellate attorneys embedded with a trial team from another firm urged trial counsel to quickly move for a mistrial, but trial counsel wanted to wait a few days to see how the new theory played out. Convinced that delay would waive the objection, and after significant dialogue with the trial team, the Orrick team elevated the issue to the client, who agreed that we must immediately move for mistrial. Moving without delay averted a potential waiver and earned praise from the client—and from the trial team. Without separate appellate counsel, the consensus on the trial team would have prevailed and the differing approach offered by Orrick never would have reached the client.
    • Role-playing the other side to help perfect our side’s best arguments. In a case that was destined to turn on a single legal issue that was an open question, an Orrick appellate team was brought in to play the “Red Team,” making the best arguments the other side could mount and then assisting the team in how to prevail over those arguments. The strategy worked, our case survived summary judgment, and we reached a very favorable settlement before trial.
    • Using law and motions research to guide trial team’s discovery. The appellate team’s role in one case was to take the lead in researching and drafting the class-certification opposition. The appellate team was so thoroughly integrated with the trial team and so deep into the research on the legal standard and the key factual issues that would decide the certification question that the appellate team was able to assist in deposition prep and expert discovery to ensure that the record mirrored the key legal strategy and arguments.
    • Perfecting the record. Upon learning post-trial that key evidence and testimony excluded from the trial had not been submitted as a proffer or otherwise filed on the docket so it could be available for use on appeal, Orrick appellate attorneys strategized to use a motion for a new trial as a vehicle to attach the evidence and witness declarations so that they could be used for new trial arguments on appeal.
    • Launching collateral litigation to prevail in the underlying matter. Orrick appellate attorneys working with a trial team discovered a legal issue separate from the main case that, if true, would have barred the initial case from proceeding. The Orrick team filed a separate complaint raising that legal challenge, which provided necessary leverage to settle the initial case on very favorable terms.
    • Spotting and briefing issues while alleviating the burden on trial counsel. On the eve of a second trial (just on damages), the trial judge sua sponte canceled the jury selection and sought to reassemble the jury from the liability trial months earlier. While trial counsel focused on preparing for trial, Orrick appellate attorneys worked furiously to prepare a motion challenging the reassembly and built a record, preserving the objection and full record for appeal.
    • Sustained attention to detail on issues the trial team lacks the time and resources for. In one case destined for trial on issues that had never been tried before and lacked sample jury instructions, the appellate team began engaging on the issue months in advance, overwhelming the other side with exhaustively researched and thoroughly vetted jury instructions.
    • Being able to take advantage of and wield appellate options. In a massive litigation, after an adverse trial court decision on threshold dispositive issue, Orrick’s appellate team used every tool at its disposal, including a longshot motion to the district court to certify the issue immediately for appeal, which permitted the team to take the issue up on appeal right then rather than waiting until the case concluded.
    • Government lobbying and robust amicus effort. Lobbying the Department of Justice and possible key amici is not unusual in appellate practice, but it is in trial court practice. Yet, precisely because amicus involvement in the trial court is so rare, amici can have an outsized influence. Orrick appellate attorneys working on trial court matters, as part of their habit from appellate work, look for angles to urge the government or possible amici to file briefs in trial matters.
  • Select Representative Engagements

    Oracle v. Google (N.D. Cal.)

    In what has been dubbed “The World Series Of Copyright Suits,” after prevailing on appeal, Orrick appellate lawyers led the briefing team for the retrial of Google’s fair use defense, leading briefing on all pre-trial, mid-trial, and post-trial issues, including jury instructions, motions in limine, Daubert motions, mid-trial objections and evidentiary issues, and motions for judgment as a matter of law and new trial.

    Credit Suisse Residential Mortgage-Backed Securities (RMBS) Litigation

    Orrick appellate attorneys work seamlessly with the securities litigation team to develop legal strategies as well as brief and argue motions and appeals across a broad docket of high-stakes RMBS actions brought by investors, insurers, trustees, and state attorneys general.

    Johnson & Johnson Nationwide Asbestos Defense Litigation

    Orrick appellate attorneys have been deeply involved in defending J&J against product-liability claims against its baby powder. This includes working with trial counsel to establish global legal strategy across thousands of cases, preparing and reviewing pre-trial dispositive motions and jury instructions, embedding in trials as lead appellate counsel, filing mid-trial objections, preserving objections and preparing the case for appeal, and drafting post-trial motions. Orrick’s appellate team also serves as a resource to trial teams from other law firms when legal issues and preservation questions arise.

    MF Global v. PricewaterhouseCoopers (S.D.N.Y.)

    In a $3B accounting malpractice suit stemming from the high-profile collapse of MF Global, Orrick appellate lawyers were brought in to assist a trial team from another firm on jury instructions, motions in limine, Daubert motions, and other pre-trial and mid-trial motions, including a mid-trial motion for a mistrial and a motion for judgment as a matter of law.

    DHL v. United Airlines (E.D.N.Y.)

    Orrick appellate attorneys were embedded throughout an antitrust lawsuit that DHL brought against United Airlines, alleging that United had conspired with many of its competitors to fix the price of fuel and security surcharges for a decade after September 11th. In addition to helping formulate the legal theories and strategy for trial, we led the briefing in opposition to United’s motion for summary judgment, where the district court not only denied United’s motion, but observed that it was more likely than not that United had engaged in the conspiracy. Not surprisingly, the case settled thereafter.

    United States v. Middendorf et al. (S.D.N.Y.)

    Working with a joint defense group across five law firms, each representing former KPMG employees charged with wire fraud and conspiracy to defraud the United States, Orrick’s appellate attorneys led briefing and argument on a motion to dismiss the novel theories of criminal liability pursued by DOJ in its indictment. Orrick’s appellate lawyers later led briefing on jury instructions and motions in limine, prior to our client pleading guilty before trial.