Today’s most successful trial lawyers use a variety of sophisticated tools to win cases. One tool in a savvy trial lawyer’s toolbox is appellate counsel. Experienced trial lawyers know that retaining a skilled appellate lawyer early in a case gives them a strategic advantage at trial, reduces the risk of attorney error, increases the likelihood of a win or favorable settlement, and improves the chances of success on appeal.
Trial lawyers and appellate lawyers have different skill sets. Successful trial lawyers are masters of the facts. They know how to mold a set of facts to create a compelling story to persuade a judge or a jury.
Appellate lawyers also tell a story. But the appellate lawyer’s focus is on the legal issues. Appellate lawyers use their research, analysis, and writing skills to distill a complex set of facts to support a compelling legal argument.
Trial lawyers who retain appellate lawyers early in a matter bring both sets of skills to their case. The synergy of a team that includes both trial and appellate lawyers gives the client a strategic advantage at trial, settlement, and on appeal
Framing the Issues
Appellate lawyers are often generalists with broad experience in different substantive areas of the law. As generalists, they bring a fresh perspective and an ability to see the big picture. They may also identify issues that are not within the knowledge or experience of the trial lawyer.
Appellate lawyers are analytical thinkers and experts at legal research. They know how to evaluate the strength of a legal argument and can provide an objective opinion about the merits of a claim or defense.
Including appellate counsel in the early stages of a case can help the trial lawyer develop a theme, spot issues, determine what claims or defenses to assert, shape discovery, and prepare claims and defenses for effective presentation at trial. Appellate counsel may also be able to help the trial lawyer evaluate a case for settlement.
One area where appellate lawyers can be helpful is in researching and writing dispositive pretrial motions. An early investment in identifying and briefing dispositive legal issues can speed up the resolution of a case by motion or settlement.
Preliminary objections, jurisdictional and venue motions, class certification motions, motions to dismiss, motions for summary judgment ─ all are appropriate tasks for an appellate lawyer.
Bringing in a skilled appellate lawyer to brief a dispositive motion can also increase the likelihood of a win in the trial court. In 2019, of the 7,597 appeals filed in the Pennsylvania Superior Court, 77% were affirmed. Given the high rate of affirmance, a win at trial greatly increases the likelihood of a win on appeal.
Assistance at Trial
Appellate lawyers can assist at trial by researching and writing pretrial memoranda. They can also advise on evidentiary issues. Appellate lawyers can draft or respond to motions in limine, offers of proof, limiting instructions, and motions on issues of privilege or confidentiality.
An experienced appellate lawyer will also be able to advise trial counsel about whether a ruling is an appealable interlocutory order and whether it should be appealed during or after trial.
At the close of the evidence, appellate counsel can draft jury instructions, verdict forms, or proposed findings of fact and conclusions of law.
As appellate lawyers are keenly aware of the need to preserve issues for appellate review, their participation at trial can help ensure that legal arguments are not waived by failure to raise them in the lower court. See Pa.R.A.P. 302 (issues not preserved at trial are waived).
Appellate lawyers’ skills are particularly helpful post-trial. During the post-trial stage, primary control of the case may transfer from trial counsel to appellate counsel, who may assume primary responsibility for drafting post-trial motions, motions for reconsideration, notices of appeal, and statements of issues on appeal.
Appellate counsel can also assist with entering a judgment, calculating interest and attorneys’ fees, obtaining a supersedeas or stay of the judgment, preserving exhibits, and ordering the trial transcript.
Appellate lawyers’ skills are at their apogee on appeal. If appellate counsel has been involved throughout the litigation, they will be intimately familiar with both the facts and the legal issues on appeal. They understand the strengths and weaknesses of the arguments and can assess the likelihood of success on appeal.
Appellate counsel’s familiarity with the appellate rules reduces the risk that a case will be dismissed or quashed. Common errors that lead to dismissal of an appeal include appealing non-final orders, failing to file timely post-trial motions, failure to file a concise statement of issues on appeal, and failure to timely file and properly serve notices of appeal.
In 2019, the Superior Court quashed, dismissed, or transferred 330 appeals, 6% of the appeals filed. Bringing in experienced appellate counsel to assist post-trial can help avoid such errors.
Appellate lawyers also know what must be included in appellate briefs and reproduced records and how they are to be formatted. Although formatting errors are not always fatal, the rejection of a brief for failing to comply with the appellate rules is embarrassing.
Finally, appellate counsel’s knowledge and experience with the appellate courts, including familiarity with the preferences of the appellate court judges, helps them select and develop the arguments that are most likely to succeed on appeal.
Appellate lawyers are more than brief writers. Used effectively, an appellate lawyer can be a key player in a trial team and can help secure a win at trial and on appeal.
Reprinted with permission from the Vol. 24, No. 2, Spring 2021 issue of PBA Civil Litigation Update.