Once upon a time, “trial counsel” and “appellate counsel” would be the same. After a verdict, the trial attorneys moved to the appellate court to either challenge a loss or defend a victory. But making that sort of shift in focus can be daunting because, while the goal for both trial and appellate counsel is victory for the client, there is a very significant difference in how that victory must be achieved. Trial counsel necessarily view their cases with the object of persuading a fact finder to decide in the client’s favor. Appellate counsel view these cases with the goal of persuading appellate judges that either the law and/or public policy are best served from the client’s point of view. In some respects, it is a sort of a “seeing the trees” versus “seeing the forest” difference in perspective.
Thus, the rise in appellate advocacy as a distinct practice focus is explained. And, not surprisingly, last-minute inclusion of appellate counsel on a trial team to “protect the record” has become a frequent practice. But appellate counsel can offer much more than “just” record-protection. Depending on when appellate counsel joins the trial team, there can be significant benefits.
The role of appellate counsel in pretrial proceedings
The appellate attorney’s role can be limited to mere consultation, discussing the legal issues, and reviewing the most significant motions. Or, that attorney could be fully embedded, working with the trial team by reviewing all filings, advising in discovery, analyzing deposition transcripts, and drafting the significant discovery and dispositive motions. And, depending on the client’s preference, the participation could fall anywhere between these two extremes.
But regardless of the extent of the involvement, the appellate counsel should do the following: First, identify legal issues and see that those issues are properly developed, advising the trial team of the facts needed to support those issues. And counsel should watch for issues that could merit immediate appellate or writ review, such as jurisdiction, arbitrability, or discovery/privilege disputes, and ensure that the best possible record is made to support any immediate review. These actions will not only assist in getting the best outcome possible at the trial court level, but will also insure that the record contains the necessary elements for effective appellate review.
Role of appellate counsel during the trial stage.
Again, the extent of the appellate attorney’s role immediately before and during trial will vary depending upon the client’s preference. But appellate counsel should be expected to take the lead in preparing the evidentiary motions, trial briefs, and jury instructions. This is generally the minimum necessary to insure the “record protection.”
Additional assistance could be offered in preparing “pocket briefs” concerning legal issues that might arise, and to participate in pretrial conferences or any motion arguments. Anticipating objections and preparing scripts for trial counsel can help smooth trial counsel’s path. While presence at the entire trial is ideal, if this is not feasible, the appellate attorney should be present during anticipated critical testimony.
One thing that should be clear is that lead trial counsel must be captain of the ship. Appellate counsel should advise as to issues in advance wherever possible, but ultimately, trial decisions must be made by trial counsel.
The role of appellate counsel during the post-trial stage
Once a verdict is obtained, appellate counsel should take the lead role for the preparation of post-trial motions and any litigation over the form of the verdict. The appellate attorney is generally in the best position to determine what efforts should be taken at this point to best smooth the path to defending or challenging the judgment. And, of course, appellate counsel will also take the lead in the actual appeal.
Cases that merit embedding appellate counsel
Any expansion of the trial team is costly, and therefore embedding appellate counsel is not feasible for all cases. But there are many cases where, for one reason or another, eventual appeal is likely, if not inevitable. Cases that involve significant legal issues of first impression are obvious choices. Early involvement of appellate counsel can be particularly useful as the decisions in such cases may impact multiple future cases. Cases with the potential for a very high dollar judgment also warrant early investment in the long view, whether for the plaintiff or the defendant. And clients who face any type of repeat litigation can benefit from engaging appellate counsel to develop a unified legal strategy and to avoid duplication of efforts across cases.
Ultimately, embedding appellate counsel makes the trial counsel’s job easier. Appellate counsel’s focus on the “forest” of the legal issues allows trial counsel to devote their energies to the “trees” of facts, and most significantly, to persuading the jury to see those facts as the client sees them.
About the author:
Tami D. Cowden, Esq. is Of Counsel with Greenberg Traurig, LLP, and is a former President of the Clark County Bar Association. Once a staff attorney with the Colorado Court of Appeals, she has spent the last fifteen years practicing appellate and business litigation in Nevada. Contact Tami at firstname.lastname@example.org.
This article was originally published in the “Appellate Practice” issue of Communiqué, the official publication of the Clark County Bar Association, (September 2020). See https://clarkcountybar.org/about/member-benefits/communique-2020/communique-september-2020/.
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