Robert A. Mittelstaedt, Brian J. Murray
Robert A. Mittelstaedt and Brian J. Murray are partners with Jones Day in San Francisco and Chicago respectively.
This article grew out of a collaboration between the authors on a case recently concluded. One of us is a trial lawyer who handled the case in the trial court; the other is an appellate lawyer who argued the matter in the Seventh Circuit. (We won at both levels. See Flomo v. Firestone Natural Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011).) This experience led to a broader conversation about who should argue the case and when. When should the lead lawyer on the matter argue? Or an appellate lawyer? Or local counsel? Or a less experienced, more junior lawyer?
We thought we would broaden our conversation by writing this article. It turns out that there is a good deal of scholarship on these issues already, and we were fortunate enough to talk with numerous individuals deeply interested in the subject, including judges from all levels of the state and federal judiciary. We unearthed more issues than we resolved, so what follows does not provide much in the way of conclusions. We hope to at least have identified the relevant issues for further discussion among teams and clients on this crucial, and potentially outcome-determinative, issue.