The most common lament of appellate lawyers is that they were involved too late: "If only the trial lawyer had contacted me earlier." If error has not been preserved, there is little even the most effective appellate counsel can do. That is why early involvement of appellate lawyers may maximize the chances for success and even decrease litigation costs. Appellate lawyers can:
- Work with trial lawyers to formulate legal strategy up front. The outcome of a case can be shaped by decisions made at its inception, including deciding who to sue, identifying the most favorable forum, and influencing the choice of law that will govern the case. Defendants can profit from early case evaluation considering jurisdictional defenses, whether the case can be transferred to a more favorable venue, and avoiding waiver of important procedural rights.
- Make sure pleadings are sufficient. Often matters must be pleaded in a certain way to preserve error. Some matters must be specifically pleaded; others must be verified. Some pleadings––such as objections to personal jurisdiction or venue––must be made before others or they are waived.
- Obtain or avoid summary disposition before trial. Appellate specialists are uniquely experienced to obtain or defeat summary judgment because there is "no evidence" to support elements of the claim or because those elements are established as a matter of law.
- Help with evidentiary issues, especially those involving experts. Appellate lawyers can show you how to have the judge admit your evidence and exclude your adversary's evidence. Because admission or exclusion of expert testimony can make or break a case, their assistance on Daubert motions can be invaluable.
- Brief and argue motions for directed verdict. Because they often are based on "no evidence" or "legally insufficient" evidence complaints, appellate experience is helpful in preserving points for appeal through these motions.
- Draft and argue the jury charge. One of the most esoteric areas of trial court practice is the jury charge, which is fraught with procedural pitfalls. An appellate practitioner can preserve error in the charge for appeal or ensure that the charge will not provide a ground for reversal of a favorable verdict.
- Brief and argue post–trial motions. In the event of an unfavorable jury verdict, appellate lawyers are uniquely qualified to persuade the trial court to enter judgment notwithstanding the verdict, to disregard certain jury issues, or to grant a new trial.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.