Playing Chess: How Appellate Lawyers Can Shape the Record Long Before Appeal

“Every case is a potential trial threat, and every trial is an eventual appeal.” Those are the words of Shelley Merkin, legal counsel for Ford Motor Company and one of four esteemed panelists at the 2024 Appellate Judges Education Institute Summit discussing how embedded appellate counsel can help shape the record for a successful appeal. The other panelists included the Honorable Jennifer Choe-Groves of the United States Court of International Trade, the Honorable Samuel A. Thumma of the Arizona Court of Appeals, and Gretchen H. Sperry of Gordon Rees Scully Mansukhani in Chicago. They all strongly advocated for involving appellate counsel early and often in a case, well before it gets to the appellate court.

Merkin manages the national appellate docket for Ford, and because “every case is a potential trial threat, and every trial is an eventual appeal,” she assigns embedded appellate counsel well in advance of the appeal and requires them to attend the trial. She does this to ensure that the right issues are preserved and Ford has the record that it wants. They do not want to see the record close and then wish trial counsel had said something they did not or that they had a cleaner record than they do. If they have a good record, a clean record, they are in a much better position to resolve the case or take it to verdict.

Ford has a team of appellate counsel. These attorneys will typically serve either the role of counsel on appeal or embedded appellate counsel for a trial team, but not both. When a case goes to appeal, Ford typically releases embedded counsel from the case and assigns someone new to the case who is not wedded to the arguments developed at the trial court level. The intention is that new appellate counsel will give the case a fresh approach and new perspective.

As someone who has a combined practice of trial and appellate work, Ms. Sperry observed that for those cases that go to trial, the exposure is significant enough that someone will appeal. So often when she comes onto the case as appellate counsel, she finds missed opportunities to present an argument in a particular way or even preservation problems for the appeal. For that reason, when working with a trial team as embedded appellate counsel, she’s constantly asking herself how she can provide value to avoid those problems.

Judge Thumma compares the embedded appellate counsel role to internal investigations, in the sense that when it is done right, the work is invisible to the outside world. It avoids so many problems that might otherwise stick out like a sore thumb:  problems with the record, the jury instructions, the demonstrative exhibits, nonspecific or untimely objections, undecided in limine motions, exhibits not received in evidence, and unrequested findings of fact or conclusions of law. And when these problems arise, chances are, counsel will not have a great day on appeal.

Judge Choe-Groves comes from a specialized court, where there is much attention to preservation and record making. In the patent space, trial counsel often also handle the appeal at the Federal Circuit, creating a seamless transition. Sometimes embedded appellate counsel take over at the trial, when they see the case is heading for the appeal. They are then acutely aware of what evidence is being offered and admitted and its significance.

Will there be a clash of egos between appellate and trial counsel?

One of the potential problems that clients sometimes worry about in using embedded appellate counsel is a clash of egos between trial counsel and appellate counsel.  When Merkin sets up trial teams with first and second chair trial lawyers and embedded appellate counsel, she heads off any potential problem by being very transparent. She frankly informs counsel that she expects them to work together, and those that do not like it, will not stay in Ford’s program.

Merkin is also clear on the roles. Embedded appellate counsel are there to preserve the record, and worry about substance and timing of objections, taking that burden off the trial lawyer’s shoulders. They also support trial counsel at the charge conference, which can be exhausting. It is a huge relief to trial counsel to have appellate counsel at their wing. Historically, those managing the case on the corporate side asked for embedded appellate counsel. Now it is trial counsel who ask for appellate counsel to help.

Still, Merkin acknowledged that in her program, using separate appellate counsel for the appeal might disappoint embedded appellate counsel. But she wants someone to decide which arguments will be strongest on a cold record. Having worked on making that record, embedded appellate counsel are not in the best position to make that assessment. That is why she has separate appellate counsel take the lead. The new appellate counsel on the case is also not as emotionally invested in the arguments previously made. That appellate counsel is usually someone from a different firm. When she brings in embedded appellate counsel, they may prefer to have their colleagues come in for the appeal. But she wants someone with no real previous knowledge of the case. That said, she is not against having someone from the same firm when it makes sense.

Sperry contends that it helps to have well-defined roles, which starts with the client appreciating everyone’s role. Even with her own colleagues, her first argument is convincing them her involvement before the appeal provides an additional benefit. It is not a given that they will use embedded appellate counsel. She explains to them that she is not just backing them, it is also a value added for the client. She reminds trial counsel that they are specialized in a particular practice: presenting cases to and persuading a judge or jury. Like them, she is also specialized. However, her discipline is preserving the record so that they will be best positioned to persuade an appellate panel later. Plus, trial counsel has “five senses on fire[GK2] ” during a trial while watching the jury and the judge.  Appellate counsel can take the weight off the bigger picture ideas, such asobjection renewals, motion in limine renewals, and ways to reframe issues on directed verdict or post-trial motions as legal arguments. These should be seen as complementary skills and contributions. She also acknowledged that, for all the potential benefits of this arrangement, parties also have to consider overall cost.

Judge Thumma added that appellate counsel can help trial counsel orient the issues for more favorable review standards. If you can nudge an issue to de novo review and away from abuse of discretion review, that can be the difference between a win and a loss on appeal. This should not be an adversarial situation. As a private practitioner, Judge Thumma once handled a case where his primary evening activity during trial was responding to emails from carriers in the courtroom who were supposedly trying to “help” but were also apparently making a record for denying coverage if the outcome was unfavorable. The trial counsel and appellate counsel are not warring factions. They are helping each other push the right buttons at the right time, because if you don’t, it can be game over before you get to appeal.

What can counsel do to help the client see the value?

Merkin acknowledged that cost is the biggest obstacle to appellate counsel’s participation. Ford, however, long ago realized the value.  Before she was hired, Ford had already implemented a policy to use appellate counsel. Whether a client will see value in large part depends on how they view the litigation docket. Ford sees every case as a trial threat and wants to position the case as well as possible for trial. If a company is not going to trial, maybe that doesn’t make sense.  If you will have to take it to trial, it is shortsighted to not invest up front because you will have to down the road. In her experience managing cases for Ford, it pays enough dividends in the long run to make the upfront investment. When the client has a big docket and is dealing with similar claims in different jurisdictions, having an entire team of appellate lawyers managing these issues across several jurisdictions adds even more value. If a client is not used to the cost, having a conversation early is important. Explain what a person with that particular expertise can add.

In particular, Merkin has her embedded appellate counsel provide real time analysis of what arguments will be for new trial, directed verdict, or appeal. They can tell her when Ford does not have a good argument in real time instead of the much less preferred method of doing a post-mortem report. Ford does not want to invest in 18 to 24 months on an appeal just because trial counsel wants to keep it going. That real time analysis is key.

Sperry pitches her role as a risk management tool and argues that two heads are better than one. She often proposes writing the motions in limine and the summary judgment motions to shape and narrow the issues ahead of trial. This gives her the best perspective for helping the client to correct or pivot and see the new track it can take if the case does not go well on an earlier track. If successful, her work can also set the client up for a better settlement position.

Judge Thumma explained that not every case warrants appellate counsel at every moment. Sometimes trial counsel can handle it on their own. But often trial counsel is focused on the theme of who is the villain and too eager to proceed toward trial. Seeing pernicious problems and resolving them with early dispositive motions can head off problems down the road, and appellate counsel are particularly good at doing that.

What are the wrong moves for embedded appellate counsel to make on the chess board?

The panelists agreed that the worst move embedded appellate counsel can make is to overstep the bounds of their role. Sperry told a story about a case where more defense counsel came in at the end of a trial on behalf of an excess insurance carrier, but other counsel were already there handing the case. There were six to eight attorneys standing on the defense side. It created a theme of David and Goliath and the defendant refusing to do the right thing. In some cases, appellate counsel will need to minimize their presence in the court room.

Judge Thumma observed that some “old gun slingers” think it demonstrates strength to bring in appellate counsel during pretrial motions just to put the threat of appeal before the judge. In his view, that backfires every time.

Judge Choe echoed that appellate counsel must understand their role. She has seen them take over at trial and miss objections or mark evidence for identification and forget to move it into evidence. Appellate counsel need to let trial counsel do what they do best.

Merkin reiterated that communication is key. The failure to communicate is problematic. Embedded appellate counsel should not be introducing evidence. They should be doing things like making sure all objections are preserved. Each person’s role should be clear.

How should trial and appellate counsel coordinate strategy?

All panelists agreed that communication is key to aligning strategy. Sperry said the trial attorney should be concerned about what a jury is thinking, and appellate counsel should be worrying about written motions. But they should also communicate their strategies. Merkin expects everyone to share their opinions, every idea even. When ideas and opinions are shared, counsel naturally tend to align through discussion. Rarely do counsel come and ask her to decide between opposing views or schools of thought.

Judge Thumma said that aligning strategies with appellate counsel early in the case makes a lot of sense when you consider the possibility of interlocutory appeals. For instance, appellate counsel will understand that the appellate court will know almost nothing about your case, and that the record the appellate court gets is limited to the appendix provided. Trial counsel often do not understand this.

The takeaways from the program were straightforward: judicious use of appellate counsel before the appeal and even before trial is advisable. The role appellate counsel should play will turn on the needs of the case, the staffing of the trial team, and economic considerations. But there should be no hesitation to bringing appellate counsel in early, and doing so is considered best practice by those who are frequent flyers in the courts. The word from them to the wise is this: find a trustworthy appellate attorney, put them on the trial team, and get them involved early.