Overview and summary
Appellate lawyers are often thought of as brief writers and oral advocates who only become involved in a case after it is won or lost at the trial court level. (They may be especially likely to be retained after a case has been lost.) While appellate briefs and oral arguments may epitomize what appellate lawyers traditionally do, clients and other lawyers are coming to recognize that appellate attorneys’ skill sets and training can add significant value at many stages of litigation starting as early as case development.
Although generalizations are always subject to exceptions, appellate lawyers tend to operate a bit differently from general litigators. Rather than working primarily to develop the most persuasive factual case, they usually focus more on legal issues and how to convince the court that their side should prevail as a matter of law. This type of approach typically requires significant research and understanding of both substantive legal principles and the legal process, combined with a winnowing of the facts to those critical to the legal analysis and the development of an overall theme. Ideally the end result is a series of persuasive logical arguments that lead to the desired outcome.
Combining this style of litigation with trial lawyers’ emphasis on fact-based storytelling results in a more compelling presentation overall. Although it may seem somewhat counter-intuitive, involving an appellate lawyer when a case is first conceived, prepared for trial, and tried can pay very substantial dividends. As statistics in many appellate courts across the country show, the key to winning an appeal is to win below. Putting together the strongest legal team possible at the outset is the best way to obtain a favorable result – which is occasionally not a judicial decision but a settlement limiting the client’s exposure or a decision to pursue a different strategy instead of proceeding with a case that presents significant vulnerabilities.
Just as appellate lawyers are likely to improve the presentation and resolution of a case at the trial court level, they also can make positive contributions on appeal even in matters they are not handling. Appellate attorneys’ objectivity, understanding of the appellate process, and familiarity with the court or judges who will hear a particular appeal make those attorneys valuable consultants in appeals being handled by others. A prime example of this is the involvement of appellate counsel in moot courts designed to help prepare the lawyer who will present the oral argument. Appellate consulting can also be helpful when assessing an appeal’s likelihood of success, determining overall strategy, identifying the best issues to pursue and arguments to make, recruiting amicus support, and finalizing the briefs.
This article will highlight the different ways throughout the life of a case in which appellate lawyers can contribute to better advocacy and decision making by other lawyers, the parties, and the courts.
Some defining characteristics of appellate counsel
People come in various shapes and sizes, and appellate lawyers are no different. But as a group they generally exhibit particular substantive skills that equip them to perform the legal analysis, writing, and advocacy that characterize most traditional appellate work. Additionally, they must naturally have or cultivate certain personal characteristics if they are to function effectively as part of a litigation team, as they are increasingly asked to do. Here are some of the attributes of the most successful appellate counsel:
Collaborative: Appellate counsel are able to work well with others to develop a final product that appears to be a seamless integration of everyone’s efforts. Except during the course of an appeal when they may be in charge, appellate lawyers need to be able to collaborate and not to insist on winning every argument. Even during an appeal, more than one appellate lawyer may be involved as well as trial counsel and the client, so the ability to deal with different personalities and a spirit of cooperation are still essential. Basically, egos need to be checked at the door.
Respectful: An appellate attorney who is not the lead lawyer in a case must be able to defer to and allow the spotlight to shine on others. Appellate counsel should also respect the views of other members of the team both at the trial court level and on appeal. As litigation demonstrates, different people – including judges, law clerks, and jurors – think and react differently. Even if an appellate attorney is convinced on a particular point, someone else’s disagreement or preference for a different approach may signal another perspective worth considering because it might be shared by a potential decision maker in the case. This is particularly true in appellate work, when there are almost always multiple decision makers whose identities may not be known until the case is about to be argued or decided.
Supportive: Appellate counsel understand the importance of solving problems rather than second-guessing how they came about. When a mistake is made, which happens in even the best-handled litigations, that is no time to point fingers; the question is how to remedy or minimize the fall-out. A supportive and non-judgmental appellate lawyer is likely to be considered a valued member of the litigation team and given more responsibility and authority.
Objective: Beyond these personality traits, appellate counsel are often defined by their approach to the practice of law. The best of them bring a fresh perspective, objectivity, and the ability to see the big picture when they become involved in a new case. They are dispassionate and logical thinkers capable of making independent judgments about the relative strengths and weakness of their client’s position. They are also quick studies, which can be especially important if they are joining a litigation team when a deadline is looming. At the same time, they are detail-oriented and sticklers for complying with legal rules and procedures. It is vital to have someone on the team who is making sure that all the i’s are dotted and all the t’s are crossed.
Analytical: By training as well as aptitude, appellate counsel excel at legal research and analysis, which are important to success at all stages of a case. They also are interested in and follow legal developments and trends, which can be valuable in assessing a case initially and reassessing its viability and adjusting its presentation over time. Appellate attorneys’ ability to distill and explain legal principles is a useful talent throughout litigation.
Persuasive: Finally, appellate counsel are talented advocates. They are clear, concise, and convincing writers and speakers. They are also effective editors of other people’s written product and good advisors on how to make oral presentations more persuasive. Perhaps most importantly, like trial lawyers, appellate lawyers are storytellers who understand the value of developing an overall theme for every case and the need to convince the court why their party should prevail not just on the law and the facts but because that is the right result.
How appellate counsel can provide value without adding undue expense
The decision whether to involve appellate counsel in nontraditional ways in litigation depends in large part on the size and importance of the case and its overall staffing, as well as the client’s and existing counsel’s desires. Cost is frequently a factor but can often be limited or managed.
A case that involves complex facts or numerous or multi-faceted legal issues that require significant analysis is likely to benefit from the involvement of appellate counsel, who can add value in helping to focus and streamline the presentation. The inclusion of a lawyer with appellate expertise on the team will usually make economic sense in a complicated case because multiple lawyers will be involved in any event.
Similarly, a case that presents the possibility of major financial exposure for one of the parties will ordinarily justify the involvement of appellate counsel to assist in developing the best possible presentation and thus minimize the risk. This is another situation where including an appellate lawyer on the team is unlikely to add significant cost.
A case that involves recurring fact patterns or legal issues important to one of the parties may have sufficient precedential significance that it too will warrant involving appellate counsel to maximize the chance of a favorable ruling. This decision may be based on principle as well as economics, especially when the facts or issues are important to the party’s operations.
A case that is expected to be appealed is also a good candidate in which to involve appellate counsel at an early stage. The appeal is more likely to succeed when the issues are properly teed up at trial, and the appellate lawyer will not only be able to assist in the trial court, but will also become educated about the case before the appeal begins. Here, too, the economics may make sense.
In some cases, the client may want to show its confidence in its position or its willingness to litigate to the hilt by involving appellate counsel at trial and thus signaling its intent to appeal even if it does not prevail initially. This may be a strategic decision as much as an economic one.
In all of these situations, the cost of retaining appellate counsel when a case is in the trial court can be minimized by making that attorney part of the trial team with specific assignments. This frees up trial counsel to focus on other tasks that match their talents and training.
Even when a case is on appeal and counsel has already been retained to handle it, there may be occasions where appellate consultation by an additional lawyer is economically warranted. This might be particularly appropriate in a complex appeal, or one that presents significant exposure or is important from a precedential standpoint. It may also be useful when the attorney handling the appeal has less appellate experience. Even in smaller appeals, involving an appellate lawyer in a moot court or other limited consultation may make economic sense.
Where, when, and how appellate counsel can add value in litigation
Once the decision has been made to involve appellate counsel in a case in nontraditional ways, a similar range of considerations will influence the choice of tasks to assign to that counsel at various stages of the litigation. Certain types of work are particularly appropriate to ask an appellate lawyer to perform.
In general, an appellate lawyer should accomplish any assigned work, consult as requested, and provide general support without taking over – unless that has been specifically requested, as will often be the case when the litigation reaches the appellate or even the post-trial stage. On the other hand, there may be specific aspects of a case where the appellate attorney may be asked to take the lead even when the case is still before the trial court. At each stage of litigation, there are at least some tasks worth considering assigning to or seeking input from appellate counsel. Appellate lawyers’ ability to hone in on the key issues and facts and to advocate persuasively are talents that are valuable across the board.
The extent to which it makes sense to assign work to or consult appellate lawyers naturally increases along with the importance and complexity of the case. Additional points to consider in deciding whether to make specific assignments or request specific consultations will vary depending on the personalities involved and the stage of the litigation. The respective roles of general, trial, in-house, and appellate counsel and the client should be determined at every stage, made clear to all, and continually reevaluated as the case proceeds.
Appellate counsel can serve a valuable function from the earliest stages of case development by helping to identify the best issues to pursue and formulating overall litigation strategy. In some cases, that strategy may include a determination that the matter should be resolved early because of its particular vulnerabilities or because a different case might present a better opportunity to reach the desired end result. An appellate lawyer’s input in the pleading drafting process can also be helpful in developing the overall theme of the case and making sure it is framed to meet the requirements and expectations set by appellate courts.
Specific tasks suitable for input by appellate counsel in the early stages of litigation include:
- issue spotting and identifying potential claims, defenses, counterclaims, and cross-claims;
- determining the best court in which to litigate, and helping to select trial counsel;
- coordinating with other interested parties or amici and with related litigation;
- developing an effective theme for the case, and ensuring that the theme is reflected and all required legal elements and sufficient facts are included in the pleadings; and
- early case analysis and risk assessment, and developing a long-term strategy for successful resolution of the dispute and the issues.
In deciding how much to involve appellate counsel in these tasks, the client and general or trial counsel should consider the value of having a legal expert consult on the current and likely future state of the relevant law. An anticipated need to coordinate with other litigation or parties may also favor early involvement of an appellate lawyer. The possibility of settlement and its likely timing are additional points to take into account; it makes less sense to seek appellate input in a case that is expected to be resolved quickly unless that input will further settlement prospects. However, some cases may simply not be big or important enough to warrant involving an appellate lawyer from the outset.
Appellate counsel can provide value in numerous ways in the pretrial discovery and preparation stages of litigation. Appellate lawyers’ talent for legal analysis and understanding of the appellate process can help hone factual development, legal theories, and an overall presentation that will position the case for success both at trial and on appeal. Appellate lawyers can also assist in assessing the case’s strengths and weaknesses and with settlement proceedings so other members of the team can focus on case development. Additionally, appellate lawyers are adept at researching issues and monitoring legal trends, and can contribute further by continually reassessing the viability of the litigation as it proceeds and suggesting changes in approach as appropriate.
Perhaps most importantly, appellate counsel can contribute significantly on major pretrial motions, which require the same skills as appellate briefs and often involve the very issues that are likely to be raised on appeal. This is one of the most typical pretrial areas where appellate lawyers are retained, and for good reason. The appellate attorney may serve as a consultant or partner on the motions, but may sometimes be asked to take the lead, including arguing key motions or helping to prepare trial counsel to argue them.
Specific tasks on which appellate counsel can add value during the pretrial stages of litigation include:
- continuing case analysis, including assessing the best claims and biggest vulnerabilities and the key issues and facts that need to be developed on each;
- settlement/mediation proceedings, including ongoing risk assessment, preparation of submissions to the facilitator, and negotiations;
- determining which issues may qualify for immediate, early, or discretionary appellate review, and the legal arguments with the most favorable standard of review on appeal; and
- preparing or defending important or dispositive early motions (e.g., motions to dismiss, jurisdictional motions, class action certification motions, expert challenges, and motions for summary judgment), including educating the generalist judge, presenting the client’s story and highlighting the opponent’s vulnerabilities, focusing on the critical facts and creating a logical progression of the legal arguments, and setting up the issues and arguments for appeal.
Appellate lawyers are particularly suited by their training and experience to assist with or handle these tasks, especially those that focus on legal issues or preview future appeals. Involving appellate counsel at the pretrial stage of litigation is likely to maximize the chance of limiting the issues that must be tried or even winning the case on motion without trial or on an early appeal, thus justifying any additional legal expense. Having an appellate lawyer assist on other matters such as settlement also permits trial counsel to focus on getting the case ready should a trial be necessary.
Trial counsel are likely to become so involved in the factual preparation of the case that they may not have adequate time for pretrial motions, appeals, settlement, or monitoring legal developments. They also may not have sufficient objectivity to reassess the viability of the case in light of factual developments or changes in the law. At the same time, pretrial proceedings provide important opportunities for trial counsel to begin establishing their credibility and rapport with the judge. Cost considerations may also favor greater reliance on trial counsel and limiting the involvement of appellate counsel at this stage of litigation. The client and all lawyers involved must balance these somewhat countervailing factors in deciding how to assign work and best position a case for success both in the trial court and on appeal.
All litigators know that in the days leading up to and during trial, there are more tasks to be accomplished than hours available in the day and days in the week. Extra hands are always helpful, and appellate counsel’s analytical, writing, and advocacy skills can be of particular assistance. If the expense can be justified, appellate lawyers are often asked to assist or handle the preparation of motions, briefs, and other submissions to the court. They also can be useful in providing objective and big picture input into the preparation of trial aids like witness outlines and opening and closing statements.
During trial, appellate counsel’s understanding of the appellate process makes them a natural choice to be given the task of insuring that all issues, arguments, claims of error, and objections are properly preserved and a complete record is created for purposes of appeal. They are regularly retained for this specific purpose, and may also be asked to review the daily transcripts and provide an extra set of eyes and ears to make sure there are no gaps in the evidence. Additionally, they may be requested to provide daily or periodic reports to general counsel or the client as to how the trial is going – and if it might be appropriate to reassess settlement positions as a result. They also can assist on or deal with last-minute motions or other matters that could distract trial counsel at a critical time.
At the conclusion of the evidence, appellate counsel are again often called upon to serve in the role of insuring the completeness of the record and preservation of all legal rights before the case is submitted to the decision maker. These matters will be critical to any future appeal, and appellate lawyers are well-equipped to deal with them. Appellate counsel are also frequently involved and sometimes take the lead in finalizing the jury instructions and verdict form (or the proposed findings of fact and conclusions of law in a bench trial), which are likely to be involved on appeal. Similarly, they may be consulted during jury deliberations, which can also be relevant to the appeal.
Specific tasks suitable for appellate counsel to consult on or handle during final trial preparation and to revisit as appropriate during trial include:
- offer of judgment and further settlement proceedings;
- factual submissions such as case summaries, statements of stipulated facts, witness and exhibit lists, and damage calculations;
- legal submissions, including final pretrial or trial memoranda and briefs to further educate the judge about the case, motions in limine, proposed findings of fact and conclusions of law, proposed jury instructions, and responses or objections to the opponent's similar submissions; and
- trial aids such as opening and closing statements, witness outlines, and exhibit control lists.
Once the trial begins, additional natural assignments for appellate counsel might include:
- preserving the issues and insuring a complete record that includes all admitted exhibits, visuals, and deposition excerpts as well as all objections, conferences, and sidebar colloquies;
- making and defending objections to evidence as needed, including follow-up motions or requests for limiting instructions, offers of proof, and statements establishing prejudice;
- preparing and defending last-minute motions, including motions for directed verdict;
- reviewing daily transcripts, advising trial counsel about appropriate additional questioning or evidence, and reporting to general counsel or the client, including periodic assessments regarding the case and the likely result; and
- dealing with collateral issues that might distract trial counsel.
After all evidence has been submitted, appellate counsel can provide further assistance on these tasks:
- reviewing the exhibits and record to insure completeness, and amending the pleadings to conform to the evidence;
- preparing or defending motions for judgment;
- finalizing proposed findings of fact and conclusions of law, and objecting to the opponent’s;
- defending proposed jury instructions, objecting to the opponent’s, and attending the charging conference; and
- preparing the jury verdict form and any special interrogatories, dealing with jury questions, and consulting regarding jury issues such as deadlock.
Appellate lawyers’ experience in dealing with legal issues and their analytic bent and attention to detail can add significant value to a trial team (assuming the case justifies a team). In deciding how much to involve appellate counsel at trial and whether to give that counsel a speaking role, the personalities of the lawyers involved and their ability to work together should be given significant weight. Who is in charge and the responsibilities of each team member should be determined and agreed upon in advance. All attorneys need to be on the same page and present a united front.
A decision must also be made about whether the client and trial counsel want to broadcast to their opponent and the court that appellate counsel has been retained. This fact may signal the importance of the case or the issues to the client, or the expectation that an appeal is likely. However, it might also be seen as an indication of vulnerability or a lack of full confidence in trial counsel. In rare circumstances, it might even result in a degree of defensiveness on the part of the trial judge or the jurors and a concern that appellate counsel is there to document errors. Integrating an appellate lawyer into the trial team is one way to avoid these issues but is not always possible, especially if the lawyer is known as an appellate specialist. Another way to alleviate concern is to have the appellate lawyer sit in the back of the courtroom and communicate with the trial team electronically.
In some cases, it may be desirable to make clear at trial through the appearance of an identified appellate lawyer that at least one party is committed to pursuing the litigation full-throttle. Appellate counsel may also serve as a buffer between trial counsel and the court, limiting the extent to which trial counsel must make objections or make arguments and thus enhancing the development of a rapport with the judge and jurors who will be deciding the case. Additionally, by taking on some non-core aspects of the trial and assisting on or handling some of the legal submissions and issues as they arise, appellate counsel can free trial counsel to focus on making the best fact presentation, and thus maximize the chance of a victory. That victory may eliminate the need for an appeal, and at the very least will increase the chance of winning on appeal. However, it also is important that appellate counsel not interfere with trial counsel’s relationship with the court and the jury. The client and all counsel should consider each of these points in making the ultimate decision whether, how, and how much to involve appellate lawyers at trial.
Once the jury or trial court has rendered a decision, the involvement of appellate counsel in the case naturally becomes more important, except in the rare case where no further litigation is anticipated. At some point in the post-trial proceedings, the appellate lawyer’s role is likely to increase and transition to something similar to that of a partner. The precise point at which that occurs will vary from case to case, but ideally appellate counsel will have substantial say at least with respect to any post-trial motions. Those motions not only require the type of analysis and advocacy at which appellate attorneys excel, but will often anticipate the appeal. At the same time, trial counsel should continue to play a significant role in the post-trial proceedings because of his or her intimate familiarity with the case and the record, as well as the relationship he or she has built with the court that will decide the post-trial motions.
Matters likely to arise during post-trial proceedings on which appellate counsel’s input would be useful include:
- obtaining the statement of decision in a bench trial or the verdict in a jury trial, and polling or questioning the judge or jury as appropriate;
- assessing the decision or verdict and the likelihood of obtaining modification by the trial court, and revisiting settlement possibilities;
- formulating and entering the judgment, including the determination of pre- and post-judgment interest and other elements such as attorneys’ fees;
- obtaining or opposing a supersedeas or stay of enforcement of the judgment; and
- preserving all exhibits and ordering the transcript.
Matters arising during post-trial proceedings in which appellate counsel should generally be significantly involved if possible include:
- reviewing the decision or verdict, and providing an initial assessment of the issues most likely to succeed (and fail) on appeal;
- reviewing the record, and considering or opposing possible expansion and means to accomplish this;
- preparing or defending motions for judgment as matter of law and new trial; and
- preparing the notice of appeal and related submissions such as a statement of the issues to be presented and critical parts of the record.
If appellate counsel has already been involved in the litigation, his or her role will naturally expand as the trial ends and the case approaches appeal. If appellate counsel has not yet been involved, his or her retention often occurs at this stage of the litigation while the case is still before the trial court. There are multiple reasons to seek appellate input at this point. Appellate lawyers know the procedural and substantive rules that are critical going forward. They are also skilled at zeroing in on the key issues and facts and presenting them effectively in post-trial motions. Those motions are likely to preview the appeal itself, and how they are decided may limit the issues that need to be appealed. Additionally, having appellate counsel become familiar with the record and key legal points in advance will result in a better presentation on appeal. Practice always improves the final performance.
It is particularly useful to involve appellate counsel in post-trial proceedings when the record or legal issues are complicated or the law is in a state of flux and the learning curve is likely to be time-consuming. At the same time, trial counsel can and should still play a role at this stage of litigation. Trial counsel not only knows the case and the record best, but also knows what was not presented and why certain strategic decisions were made. Whether the case was won or lost in the trial court, it is important for that knowledge to be shared with appellate counsel, who can then advise on how best to present the case going forward.
5. Appellate consulting
Appellate lawyers also are increasingly called upon to assist or consult on appeals they are not themselves handling. The classic illustration of this is a moot court designed to prepare the lawyer who will be presenting oral argument in the appeal. Such exercises are usually most effective when they involve lawyers or former judges who are not involved with the case but have significant appellate experience and familiarity with the issues involved or the appellate court that will decide them.
That same appellate experience and familiarity with the issues and the court can be employed to enhance the presentation of an appeal in other ways to maximize the chance of success. This type of appellate consulting is most likely to occur in litigation involving important or recurring issues or substantial financial exposure. In some cases, the client or counsel handling the appeal may want to retain an appellate consultant who has substantial knowledge of the subject matter involved and legal or industry trends. In other cases, especially where counsel or the client already has such knowledge, retaining an appellate lawyer who has less familiarity with the subject may provide a perspective similar to the generalist judges who will hear the appeal. An appellate consultant with significant experience with the court hearing the appeal may also be a valuable resource to counsel less familiar with that court.
Areas where appellate consultants can provide significant value in the early stages of an appeal they are not handling include:
- case evaluation and assessing the likelihood of success on appeal, which may include comparing the case to other appeals and considering which is most likely to result in a favorable decision;
- advice concerning the issues most likely to succeed in the court hearing the appeal, and the best points to pursue or the most effective arguments to rebut them;
- drafting effective questions presented or the counterstatement, and advising on what portions of the trial court record should be included in the appendix;
- appellate mediation proceedings or settlement negotiations, including preparing submissions to the facilitator;
- dealing with collateral issues such as a claimed conflict of interest on the part of retained counsel or a suggestion of judicial recusal;
- motion practice on such points as requests to stay or expedite an appeal, consolidate it with other litigation or transfer it to a different court, dismiss it for lack of jurisdiction, or correct or expand the record; and
- amicus practice, including recruiting amicus support, representing one or more amici, and challenging the request of an amicus to file in support of the opponent.
As an appeal proceeds to briefing and argument, appellate consultants can contribute in additional ways such as:
- for an appellant, narrowing the issues to be presented and determining the most favorable possible standards of review; conversely, for an appellee, determining the most powerful arguments to counter the issues presented and identifying other bases for affirmance supported by the record;
- formulating the main theme and story line for each brief and reviewing drafts, with the focus on limiting the facts presented to those that are essential, the logical flow of the arguments, and overall advocacy;
- providing background on the court or judges assigned to hear the appeal, as well as the issues and argument approaches most likely to resonate with them;
- organizing or participating in formal moot courts, or assisting in less formal argument preparation by discussing strengths and weaknesses of the case, points to emphasize, and ways to respond to likely questions; and
- reevaluating settlement possibilities following oral argument in light of the judges’ reactions to the points presented and their questions.
An appellate consultant can also continue to contribute even after a decision is issued in the following ways:
- reviewing the opinion, and assessing the likelihood of post-decision relief;
- identifying the best issues to continue pursuing or counterarguments, and preparing or responding to petitions for rehearing by the panel or the court as a whole or for discretionary review by the next highest court; and
- recruiting amicus support as appropriate.
No individual lawyer, no matter how talented or experienced, is knowledgeable about every substantive area of law or industry and fact pattern presented in the cases he or she is retained to handle, or every judge who will decide those cases. The best lawyers appreciate that thorough research and preparation are critical to achieve a favorable result in litigation. This is as true on appeal as in the trial court. Even experienced appellate attorneys – perhaps especially experienced appellate attorneys – recognize the value of obtaining an expert’s views on the legal issues presented by an appeal and the court that will hear them.
The views of others concerning how best to brief and argue an appeal are of similar value. When a case reaches the appeal stage, it will be decided not by a single person but by a panel of multiple judges with law clerks, all of whom will read the briefs and attend the oral argument. Earlier input from other appellate lawyers or former judges may be the best available preview of this decision-making process, and will help counsel handling the appeal formulate an overall strategy designed to appeal to multiple individuals (pun intended).
The expense of hiring an appellate consultant will not be justified in every case. This approach is most likely to be employed in complicated cases or ones involving important issues or significant exposure. Limiting the advice sought to points of particular concern may make involving an appellate consultant more financially viable in smaller matters. The importance of having some appellate input increases when the appeal is being handled by a general litigator rather than an appellate lawyer.
Appellate counsel’s skills and training can add value throughout the course of a case. Clients and general and trial counsel should not wait until a case has been decided to take advantage of appellate counsel’s capabilities, and should also consider consulting additional appellate lawyers in appropriate appeals. For their part, appellate lawyers should seek out opportunities to contribute from the early stages of litigation. The result will be more effective case presentations and better informed decisions, which will benefit all parties, the courts, and the public.