A New Paradigm for Trial Teams – Embedding Appellate Lawyers at an Early Stage

March.24.2021

In this New York Law Journal article, partner Andrew Silverman and associate Chris Cariello propose an innovative shift in the traditional model of trial team composition – calling for embedding appellate lawyers at an early stage to better shape future arguments for the appellate courts.

Andrew and Chris, members of our Supreme Court and Appellate practice, note that delays in trial court proceedings triggered by the Covid-19 pandemic have provided an ideal opportunity to consider change.

“At bottom, we’re convinced that clients who integrate their trial and appellate teams get representation that is more effective and efficient than those who don’t—representation that pairs the best trial advocates and the best brief writers, with everyone working to win in the trial court while seamlessly preparing for the appeal,” the article concludes. “The ongoing disruption in trials carries precious few silver linings, but the chance to reevaluate and revise old modes of doing things could prove one of them.”

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Authors

Andrew D. Silverman Partner, Supreme Court & Appellate, Supreme Court and Appellate “Issues”

New York

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D:+1 212 506 3727
E: [email protected]

Practice:

Supreme Court & Appellate
Supreme Court and Appellate “Issues”
Risoluzione contenziosi e vertenze complesse
Mass Torts & Product Liability
Proprietà intellettuale
Trademark, Copyright & Media
Financial Services Litigation
Contenzioso titoli, class action e cause azionisti
Affari governativi
Employment Law & Litigation
Energy
False Claims Act
Difesa class action
U.S. International Trade Commission

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Andrew D. Silverman Partner

New York

Andrew is a skilled brief writer who works on significant motions in the trial court to prevent any need for appeal by winning the case first. Drawing on his years as a trial attorney at the U.S. Department of Justice, Andrew collaborates with the trial court team to serve as the point person for law-intensive brief-writing and strategy. Andrew is frequently retained to work on motions to dismiss, preliminary-injunction briefing, and summary-judgment motions. If the case proceeds toward trial, Andrew leads strategizing and all manner of briefing from jury instructions to motions in limine to mid-trial objections and pocket briefs to post-trial motions for judgment as a matter of law and for a new trial.

In addition, Andrew focuses on readying cases for appeal by perfecting critical appellate issues and teeing them up in the most favorable posture. Andrew has brought these special skills to bear for some of the world’s largest companies in their most important cases, including for Oracle (against Google and the U.S. Department of Labor), PricewaterhouseCoopers (against MF Global), and Gilead Sciences (under the False Claims Act and in a mass products liability action involving tens of thousands of plaintiffs).

Andrew also has a strong record on appeals, including major wins for Oracle (against Google), Dow AgroSciences (against Bayer CropSciences), Basin Electric Power Cooperative (against one of its member-owners), KBC Bank (against Lazare Kaplan), and in the U.S. Supreme Court for the County of Los Angeles and for a Thai Professor (in a landmark copyright ruling). In appellate cases, Andrew takes pride in collaborating with his client and the trial team to rethink the case from the bottom up, searching for ways to present even the most complicated arguments as plain common sense, and drafting a storytelling version of the case that hooks the reader from the first page. Andrew emphasizes oral argument, working tirelessly to develop themes specifically for oral argument that magnify -- not merely parrot -- the briefing.

Christopher J. Cariello Partner, Supreme Court & Appellate, Litigation & IP

New York

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D:+1 212 506 3778
E: [email protected]

Practice:

Supreme Court & Appellate
Litigation & IP

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Christopher J. Cariello Partner

New York

Chris has represented major ISPs in high-stakes copyright litigation, tech titans pushing the cutting edge, national retailers with key trademarks on the line, and global manufacturers facing class action risk. He has authored dozens of appellate briefs, winning results in federal and state courts of appeals and the U.S. Supreme Court. And he is a consummate team player when partnering with trial teams to craft winning legal strategies and themes, brief dispositive motions, win key legal and evidentiary rulings at trial, and construct a record with an eye towards appeal.

Chris is most passionate about the novel issues that arise at the intersection of tech and commerce, implicating the balance between creation, innovation, and competition. Whether it's the DMCA and copyright's intermediary liability doctrines, generative AI, data scraping, or trade secrets, he relishes litigating in the gray areas, presenting what the law ought to be as plain common sense. Chris also has a wealth of experience in class action defense in both trial and appellate courts, including several appellate victories defending the denial of class certification. And his broader experience includes bankruptcy, telecommunications, constitutional law, and various issues confronting Fintech companies.

Chris maintains an active pro bono practice. He led a team that prevailed in both federal district court and in the Second Circuit in one of the nation's most closely watched police transparency cases. The year before, he argued and won a precedent-setting parole appeal in New York’s Appellate Division on behalf of a former juvenile offender. And he has won victories for clients in immigration cases and cases presenting novel legal issues under freedom of information laws.

Prior to joining Orrick, Chris was a law clerk to Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit and Chief Judge Carol B. Amon of the U.S. District Court for the Eastern District of New York.