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A Dynamic Duo: Trial Lawyering with Appellate Backup

Whitney Brieck

by Whitney Brieck

August 15, 2022

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An email alerts you that your opponent’s dispositive motion has been granted.

The judge rules unfavorably from the bench on a case-ending issue in discovery.

The jury returns a verdict unsupported by the evidence they were supposed to consider.

Often, this type of adverse outcome prompts trial lawyers to seek appellate counsel for the first time in a case. But trial lawyers stand to focus and refine their investigative process and more defensibly build a case by seeking appellate counsel much earlier in the litigation process.

If you are a trial lawyer, getting good appellate backup in the trial court leaves you free to develop and deploy the best facts at the right time, with maximum support grounded in the right legal theories. It can also supplement your arsenal of maneuvers to ensure that your client takes—and maintains—the procedural high ground throughout the battle.

It’s the Robin to your Batman in the trial court.

What should trial counsel look for in appellate counsel?

Good appellate counsel should appreciate what you as a trial lawyer already knows: the pace of trial work is fast and furious, and skilled trial lawyers must make game-time decisions anchored in the overall themes of a case.

A thoughtful alliance between you and appellate counsel can help you build a more nuanced legal framework to develop and support your themes in advance, so you have maximum visibility to pick and choose your pivots throughout the litigation process.

From helping you secure the best forum for your dispute (think: all those arbitrability and jurisdictional dilemmas), to isolating key facts to nail down in discovery, look for appellate counsel who can add value through early collaboration in the trial court. Pow!

What relief should appellate counsel offer to your trial team?

A good appellate lawyer stays plugged-in to the community of judges and body of ever-developing case law that may impact you and your client. Holy nerd-alert, Batman!

Appellate counsel can be a welcome resource to isolate discrete legal issues that are recently decided in your jurisdiction, and help you present focused arguments on dispositive issues that may impact what you ultimately present to a judge or jury.

Let appellate counsel offer meaningful assistance in your dispositive motion practice. Appellate counsel can also identify and explore avenues for seeking appellate relief through interlocutory and mandamus proceedings and associated emergency motions with the appellate courts—to keep your case on track and headed to trial.

What’s standing in the way of teaming up?

Some trial lawyers shy away from seeking appellate counsel at the outset of a case, and for good reason. Adding attorneys to the trial team sounds like additional cost, and it can seemingly create an unwelcome opportunity for client-poaching or for unfair second-guessing of the work you are doing in the trenches.

But a smart appellate lawyer can help inform your decision-making on tough calls that create efficiencies in case development, and they should always be mindful that the best way to make the most out of everyone’s role is to (1) foster a positive relationship between you and your client, and (2) help make the entire team shine.

So, be mindful of all the potential “appellate” battlegrounds in the trial court. Forum selection and enforcement. Temporary injunctive relief. Discovery disputes. Expert challenges. Dispositive motions. Preparing for trial. Post-trial proceedings.

You are an expert at crafting a narrative that will resonate with the finder of fact. Don’t get bogged down with the technicalities that may distract you from your best trial work. Subcontract out some of these superhero skills, and get back to saving the day.

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