Don't Bet the Business

There can be a disconnect between lawyers that try cases and those handling the aftermath on appeal. Much of this stems from the very nature of each proceeding. 

Trial lawyers see themselves as being in the thick of a fight, navigating the known and unknown in a very fluid environment. To them, appellate lawyers are brief writers and oral advocates who spend their time in the sterile office reviewing and analyzing the case only after the fight is over.

Experienced trial lawyers should know, however, that there can be no better ally during trial preparation, and the trial itself, than an experienced and well-versed appellate attorney. 

Below I discuss some misconceptions about possible roles of appellate counsel during preparation and trial.

Misconception #1: Appellate attorneys only add cost for little return

Litigation is expensive. Trials can be very expensive. As the bills add up, clients are understandably concerned about the cost incurred, and to be incurred as trial preparations ramp-up. Adding an appellate attorney to the trial team may seem like a luxury but it may not be, particularly when the case involves numerous and/or complicated issues.

Appellate attorneys are experts at analyzing, organizing and presenting the complex as simple – something that trial lawyers strive to do when presenting to a judge or jury. When the economics of a case permit multiple lawyers, having an appellate expert as part of the trial team can be invaluable, particularly when the case is expected to be appealed. 

Misconception #2: Involving an appellate lawyer signals weakness

Trial lawyers are competitive by their nature. They always want to present confidence, strength and not the slightest of doubt in the merit of their case. These goals are not antithetical to involving appellate counsel at trial. Rather than signal weakness or doubt in a position, in some cases there is value in demonstrating to the other side a willingness to fight on into the next round if round one proves unsuccessful.

Misconception #3: An appellate lawyer at trial is redundant

I have often said that a person will tell themselves their side of a story so often it becomes a truth that cannot be challenged. Lawyers are not immune to this condition. While that may be human nature, to walk into a trial full of confidence, doing so without comprehensively examining and considering the other side’s strengths is inexcusable. 

Appellate attorney review of the facts before a case is tried offers many advantages, not the least of which is a fresh and objective perspective.  Appellate lawyers can assist in developing trial themes while helping to ensure that those themes fully cover all required elements and burdens of proof. Appellate attorneys make a living identifying the strongest and weakest of claims, particularly given the appellate standards of review. Knowing how well an issue will play on appeal can help to successfully shape and focus trial themes, the priority of proofs and even identify offensive and defensive strategies that may not have been apparent.

Misconception #4: Appellate lawyers are just in the way at the trial table

Leading up to a trial is a busy time. There always seems to be one more task to complete and fewer hours in the day than are needed to prepare. Help is always welcome. Appellate lawyers are the perfect choice for pretrial motions, trial briefs, pocket briefs, jury instruction preparation and any other issue than may come up again as part of an appeal.

Once the trial begins, things can move fast. Objections not timely raised, fully defended, or properly preserved, can leave an incomplete record that may not be apparent until the appeal brief is due. Appellate lawyers can also be the perfect choice to review daily transcripts to determine if any gaps in the evidence need to be filled before the close of proofs. 

As the trial winds down, appellate lawyers may also be best suited to consider whether the record is complete, if any pleading amendments should be offered, how to prepare and present motions for directed verdict, what to include in proposed findings or jury instructions, and how to craft the verdict form.

Some Closing Thoughts

While lawyers and their clients may not want to fully consider the possibility of losing before the trial begins, they certainly should consider strategies available to protect a hard-fought victory should it come. Put another way, appellate lawyers do not just appeal the loses, they also will help to protect the win during the appeal the just defeated party is certain to file. Trial lawyers know how trial judges are going to weigh facts and evidence, but appellate lawyers know how an appellate court will look at the same facts, the same evidence, and how they will review and pass on the decisions from which the facts and evidence were made. 

Trials should be avoided whenever possible. However, when a trial is the only option, trial lawyers play to win. That said, win or lose the trial lawyer must situate the case for an appeal, and having an appellate lawyer on the trial team and in active participation offers the best chance the achieve that end. Trial lawyers and appellate lawyers are specialists, each with unique experiences and skills. However, they work best when they work together.