Innovative and groundbreaking litigators have become increasingly creative with the job description for an appellate lawyer embedded in a trial team. No longer “just” a record-protector, the appellate guru may be a persuasion consultant, brief-and-motion-writer, legal-issue-spotter, oral arguer, jury instruction ace, whiz researcher, multi-jurisdictional strategist, or any combination of these. Instead of being invited to participate in trial at the last minute (only when it becomes clear from failed settlement negotiations that a trial is sure to occur), appellate lawyers are now often recruited to join the trial team as soon as the dispute begins. And instead of focusing exclusively on posturing the case for an eventual appeal, appellate lawyers are now often focused on how to facilitate a win in the trial court, or how to avoid a trial altogether by securing favorable rulings on dispositive motions or achieving results at the motion in limine hearing that improve the chances of a settlement. Experienced embedded appellate lawyers are learning that no two trial roles are alike, and that initiative, vision, and creativity are critical to add value to a trial team. For embedded appellate lawyers looking to take their value (offered and added) to the next level, here are a few new and niche trial frontiers to consider:
- Proof Charts. As soon as you become involved in a case, make a proof chart of every required element of every claim and defense in the case. In the run-up to trial, this will help orient everyone to the forest as each person on the team focuses on individual trees - vulnerabilities, redundancies, and irrelevant facts will declare themselves, thereby affording the team an opportunity to prepare efficiently and strategically.
During the trial, take responsibility for checking items off the chart as evidence is admitted. This has numerous benefits: (1) for a plaintiff, it reduces the likelihood of any unintentional gaps in the record, thereby minimizing vulnerability to a fatal-deficit-of-proof argument at the JML phase; (2) for a defendant, it enhances the likelihood of spotting proof deficits and weaknesses as early as possible in the order of witnesses; and (3) it is an invaluable tool for collecting citations that will be necessary on a time-sensitive basis in drafting a JML or opposition.
As trial lawyers carry responsibility for individual witnesses and dive deep into the details of specific documents and individual examinations, the appellate lawyer is often in the best position to develop a bird’s-eye view of the record as a whole and to keep that perspective throughout the proceedings.
- Objection Scripts. Consider scripting out objections that you expect your team to make. Quite often, important objections are highly predictable – the court may even invite them during a motion in limine hearing. If you know that your team is likely to object to a particular item of evidence, script out the grounds on a single page, in bullet-point format, in large font with key words in bold. Highlight copies of the relevant cases and have them ready to give to the court. If you’ve already researched the grounds, the script takes very little time to prepare. Think of it as cheap insurance against an avoidable wound: in the heat of the moment at trial, your scripts will make it easy for your colleagues to state their objections correctly and fully, and hard for them to misstate or overlook a ground if the court or opposing counsel interrupts their argument. This is a small task, but it can pay off in a big way.
- Motions to Strike. Consider preparing these ahead of time for objectionable evidence or testimony that you know is likely to be admitted into evidence, or even just blurted out by a witness. Be familiar with when these are required, and when they might not be necessary but are strategically useful. For example, in some jurisdictions, authenticity objections are not complete unless they are accompanied by a contemporaneous motion to strike the inauthentic evidence. In other instances, written motions to strike might be very helpful in persuading the court to instruct the jury to disregard particular aspects of a fact or expert witness’s testimony that could be very damaging if permitted to linger in the jury’s mind.
Depending on what you’re able to persuade the court to strike, your motion may open a JML door that was previously closed: I once saw a trial court strike all of the testimony of a plaintiff’s damages expert about lost profits, a ruling that very nearly opened a JML door for the defendant based on a fatal deficit of proof on damages. Had the plaintiff not offered factual testimony about the extent of his lost profits, the door would have been wide open as soon as he rested.
- Bench Briefs. If you’re participating in a trial with esoteric or numerous legal issues, or uncommon evidentiary concerns, consider preparing very short bench briefs to assist the court during trial. If these are going to be effective, they cannot be merely repackaged motions in limine – they are an entirely different tool, designed less as bare advocacy and more to alert the court to the applicable legal standard, the relevant authorities explaining or applying it, and the pivot points or critical facts that should drive the court’s analysis. Likewise, if these are going to be effective, they cannot be long – if they are too wordy to be digested quickly, or so long that your adversary will want the opportunity to file a written response, they could cause delay or worse, be counterproductive. The goal is to make unusual issues easier for the court to consider and decide, and to build credibility with the court as the resident expert on unusual legal issues, along the way.
- Offers of Proof. If the trial team anticipates that an offer of proof is likely to be necessary, research the applicable requirements for exactly how and when it must be made. Does your jurisdiction require a particular format? What are the rules about timeliness in your jurisdiction? Are there certain aspects of the proffer that are open to the court’s discretion? Must it be made outside the presence of the jury? Must you state with specificity the purpose for which the evidence is sought to be admitted? Often, offers of proof are easier to mess up than to get right. Additionally, there may be strategic aspects to the proffer that your team does not want to miss – for example, there may be a way to present the proffer that could convince the court to admit the evidence after all. This type of research can and should be undertaken well before trial. It is also easy to update and re-use, if you are a repeat litigator in the same court or jurisdiction.
- Jury Charges. In my experience, embedded appellate lawyers are commonly expected to draft jury instructions and prepare objections to the other side’s proposed instructions. Tackle this task with sophistication, and do not limit your research or study to the pattern instructions just because that is where the court will look first. Look beyond the pattern instructions to the caselaw – often, you’ll find slight modifications to the patterns that have been upheld that you may prefer, or case law that is slightly different from a pattern in a way that you really need to know about.
Take the long view of what the jury is told, starting with the moment that potential jurors are introduced to the case: are there instructions that you want to propose that the court give to the jury before trial? Before or during voir dire? Do not pass up the opportunity to advocate for the court to educate the jury in a particular way. Think also about the instructions that are given during the trial and know the rules that apply to those. Are you entitled to have those instructions re-read to the jury when it is charged at the end of the trial? What flaws in those instructions will support a mistrial? When and how often do objections have to be articulated to mid-trial instructions, on pain of waiver?
Above all else, start on the draft instructions well before trial (no matter when your filing deadline is) and leave time for the rest of the team to review them. In a dream world, you would start thinking about your draft instructions as you prepare your proof chart, so that you (and your team) are fully oriented to exactly what must be proved and disproved, and not distracted by juicy facts that ultimately won’t matter.
I once worked on an appeal of a multi-million dollar verdict that was based on an instruction that included the disjunctive “or,” when it should have included the conjunctive, “and.” The error led the jury to believe that it could impose liability upon finding one of two necessary facts, when under the applicable law only a finding of both facts could support liability. When it comes to instructions, every word matters, so there must be time to consider each word carefully.
As the frontiers of appellate advocacy continue to expand well beyond the appeal phase of litigation, and beyond “just” protecting the record at trial, an appellate lawyer’s value added is going to be increasingly linked to his or her creativity and versatility. Whether you try one or all of these ideas or a different approach, be sure that your trial team reaps the full range of benefits available in connection with your specialty expertise – they’ll thank you for it.