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February 04, 2022 Appellate Issues | Winter 2022

Clients in The Courtroom: How In-House Counsel View Appeals and Appellate Courts

By Liz Lang Miers

We heard from an excellent panel at the 2021 AJEI Summit about what factors in-house counsel consider when they hire outside appellate counsel. The panel was moderated by the Honorable Diane M. Johnsen and the two panelists were Heather Bailey New and Kimberly R. Phillips. Judge Johnsen had a distinguished legal career as a practitioner and then as Chief Judge of Division One of the Arizona Court of Appeals before she retired from the court in 2020. Ms. Bailey New was previously an appellate practitioner with Haynes and Boone, LLP, and Bell Nunnally & Martin, LLP, and she is currently the Assistant Vice President and Senior Legal Counsel, Appellate Litigation, of AT&T. Ms. Phillips is General Counsel, Global Litigation, for Shell Oil Company.

Background of their cases:

Both panelists discussed the number and types of cases they handle and manage in-house. Ms. Bailey New explained that AT&T had about 80 cases on appeal last year, which was down from 100 the previous year. Most were in federal courts and generally related to labor and employment, business disputes, tort and insurance matters. AT&T is the appellee in 64% of the cases. She said that AT&T has a very large legal department that operates much like a law firm. The in-house appellate group has evolved, and they are involved in the larger cases from the beginning.

Ms. Phillips said that Shell generally has several dozen cases on appeal. More are in federal than state courts, and the cases tend to involve business disputes and environmental issues.

Qualities they look for in outside counsel:

Ms. Phillips said that Shell sends out Requests for Proposals (“RFPs”) when they are hiring outside counsel. She said the RFPs go to three firms. She suggested that lawyers keep their responses to RFPs simple. She wants to know that the lawyer has a vision for the case that will achieve the outcome Shell wants.

They both discussed how they decide to hire outside counsel for appellate matters. Both speakers said that diversity is a priority. Ms. Bailey New explained that AT&T holds back 10% of the fees and looks at who worked on a case during the year to determine whether there was actual diversity on the legal team. She said that she believes appellate practice is behind on diversity. She said they create teams with groups of associates who are diverse and licensed in different states.

Ms. Phillips said that companies, vendors, and suppliers have an obligation to demonstrate diversity, so diversity on their legal teams is very significant to Shell. In addition to information they receive from prospective outside counsel, they may search the firms’ websites to see who else at the firm could be involved in their matters.

Ms. Phillips said that there is no presumption that the trial team will be hired for the appeal. She is always looking for the best lawyer. She said that the qualities she appreciates in an appellate lawyer are creativity and thinking outside the box. She said that cases are complicated and that she wants collaborators who are willing to agree to disagree and tell her when they think she is wrong.

Ms. Bailey New agreed. She also said that writing that is clear, creative and concise is critical. And how things look on the page is very important. She told us that she put together a style guide for the lawyers she works with, and she is very involved in matters that are handled by outside counsel. As an example, she said the table of contents should be an outline of the briefs.

Ms. Bailey New explained that AT&T wants to know how long the appeal will take, how much it will cost, whether it will involve a moot argument, and whether there will be multiple rounds of edits to the brief. She said that outside counsel needs to build in time for in-house counsel and clients to review and work on the drafts of briefs before filing deadlines.

Ms. Phillips said she is also very involved with how cases are handled by outside counsel and views it as a collaborative process. Shell prefers appellate briefs to be drafted for dual audiences—the court as well as for the public—because there are many different stakeholders and interests involved in each case. Ms. Phillips agreed with Ms. Bailey New that outside counsel should never procrastinate in the briefing process because Shell may need their own businesspeople, internal experts, and in-house lawyers to review drafts before they are filed.

And they both said that their appellate lawyers must work well with other lawyers.

How they decide what to appeal:

They both explained that they have lengthy discussions with outside counsel before they determine what issues to appeal. They consider how issues in one case may impact other related matters, so they pick issues that focus on the goal and do not create other problems.

Fee arrangements:

Ms. Bailey New said that AT&T looks for transparency about what the likely time will be between final briefing and argument. She said that, as part of the budgeting process, it helps to know the quarter in which fees will be due and paid.

For Shell, Ms. Phillips said that although hourly billing is the exception, they do have hourly-based fee arrangements. She said she realizes firms do not work pro bono. Both sides have to be fair and adapt if things change. And they rarely look at the price only. She said the market sets the price. She mentioned that a company of which she is aware uses a real time auction for the RFPs. But she said Shell is more concerned about who has proposed the best appellate strategy.

What they seek from court decisions:

They both discussed how important it is to have clarity, sound legal reasoning, and fairness in court decisions. Ms. Bailey New stated that they would prefer to have the issues addressed on appeal. And both speakers said that it is important for a court to follow its precedent because consistency allows them to plan for and rely on precedent.

Alternative dispute resolution:

AT&T believes in arbitration for their consumers, and they have a robust pre-dispute procedure. They are highly incentivized to resolve matters before arbitration. Ms. Bailey New explained that AT&T’s system is set up so that consumers may raise their issues by making a call, without the need to hire a lawyer.

Ms. Phillips said that Shell also uses alternative dispute resolution and considers which system is the best to resolve different types of disputes.


The audience would have gladly stayed for a longer presentation and discussion. It was a great opportunity to hear from very experienced lawyers, who are handling significant appellate dockets, to learn how they select outside counsel to work on their matters and receive guidance about the best practices for outside counsel.

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Liz Lang Miers


Elizabeth “Liz” Lang Miers is a Partner and Director of Attorney Development at Locke Lord LLP. She served 15 years as a Justice on the Texas Court of Appeals and, while there, served as Chair of the Texas Multi-District Litigation Panel. She is a Past-Chair of the Judicial Division and of the Appellate Judges Conference of the ABA, Past-Chair of the Appellate Judges Education Institute, Past-Chair of the Judicial Section and member of the Executive Committee of the State Bar of Texas and Past-President of the Dallas Bar Association. She received the Samuel Pessarra Outstanding Jurist Award, the Citation of Merit for Outstanding Achievement and Meritorious Service in the Law from the University of Missouri School of Law, the Judge Sam Williams Leadership Award from the State Bar of Texas and the Chair’s Award for Excellence from the Texas Center for the Judiciary. She is a member of the American Law Institute and has been named among The Best Lawyers in America, Appellate Practice and Commercial Litigation (2021-2022).