United States: Significant Savings, Short Terms And Long Term: The Benefits Of Early Appellate Intervention

In the words of many appellate practitioners: "To turn around a bad result, the client engages me after the jury has returned a substantial verdict. I discuss the case with the client and trial counsel and read the record. All too frequently, I discover arguments and issues that would be compelling but for the fact that they were never raised or preserved in the trial court. Even worse, I sometimes discover that the verdict is the product of procedural irregularities—and might have been avoided altogether if appellate intervention had been sought before trial."

Engaging appellate counsel early in the litigation process (i.e., well before trial) can smooth the road to a favorable appellate result and yield significant savings of attorneys' fees. Clients who face mass tort or other types of repeat litigation can realize long-term benefits by engaging appellate counsel to develop a holistic legal strategy. Following is a discussion of the ways a client could effectively use appellate counsel early in the process.

The Embedded Appellate Counsel

The high-exposure case in a hostile jurisdiction can be one of the most formidable challenges facing the in-house lawyer or claims professional. The case will be tried to a plaintiff-oriented jury. At best, the judge will give the defendant no breaks on legal and procedural rulings. Worse, the judge may actually try to engineer a significant verdict. Fully appreciating these circumstances, plaintiffs will make an exorbitant demand based not on the merits, but on the jurisdiction. This type of case is a prime candidate for the use of embedded appellate counsel (EAC).

Engaging the EAC

Upon engaging the EAC, the client should discuss the scope and objectives of the engagement with the lead trial lawyer and EAC. The client should assure trial counsel that the decision to engage an EAC attorney does not signal a lack of confidence in the trial counsel's abilities, nor is it an effort to take work away from the trial law firm. Likewise, the EAC should make it clear that his or her purpose is not to second-guess or undermine trial counsel, but rather to collaborate and support the trial team.

In fact, the EAC will make the trial team's job much easier. By taking the laboring oar on making appropriate legal arguments and preserving error, the EAC frees trial counsel to focus on what he or she does best—presenting a factually compelling case to the jury. In cases where the judge is actively hostile to the defendants, the EAC can serve as a lightning rod when legal issues need to be pressed. Most important, trial counsel can count on appellate counsel as a check against errors in preserving appellate points.

Regardless of the particular circumstances of a given case, a client should always have the same set of expectations of the EAC. The EAC should be an expert on the law, the procedure for preserving error, and every aspect of appellate procedure. The EAC should be an innovative legal thinker able to develop creative legal arguments and theories, and the EAC should understand the best method for developing those legal theories. The EAC should have a keen eye for the issues that are most likely to get favorable attention from the intermediate appellate court and the highest court in the jurisdiction.

The EAC's Role Before Trial

The EAC's role before trial can vary based on the client's preferences and the trial team's workload. On one end of the spectrum, the EAC might serve simply as a consultant, discussing legal issues with the trial team and client and reviewing significant motions and briefs. At the other end of the spectrum, the EAC may be fully embedded and work hand-in-glove with the trial team, reviewing all filings and discovery; analyzing all of the deposition transcripts; drafting all motions, briefs and papers in the case; and taking the lead in arguing all motions.

Whatever level of involvement the client chooses, the EAC has three principal tasks during the pretrial stage.

First, the EAC evaluates the case from a legal standpoint, identifies legal issues that have arisen or may arise, and sees that those issues are properly developed. The EAC should advise trial counsel on what facts should be developed to support these legal issues. The trial team members should keep this advice in mind as they prepare the case for trial.

In this regard, Daubert motions to exclude plaintiffs' experts should be a particular focus, as "junk science" is frequently at home in lax judicial venues. The EAC should ensure that an appropriate record is developed to support these motions. To this end, the EAC should advise the trial team on what admissions to elicit during expert depositions. The EAC should determine whether the motions are properly supported by affirmative evidence, such as a learned treatise that sheds light on the unreliability of the expert's methods and data.

Second, the EAC must pay close attention to issues that merit or support immediate appellate intervention. The availability of interlocutory appellate relief varies from state to state. Some states, such as New York, freely allow parties to appeal from interlocutory orders. Other jurisdictions are more restrictive and require a litigant to demonstrate that an ordinary appeal will provide an inadequate remedy for the harm that the court's ruling has caused.

Irrespective of the procedure in the particular jurisdiction, a litigant who seeks pretrial appellate intervention must seize the appellate court's attention and convince it of the harm that will occur if the appellate court does not act. Often, this will be a challenge. A skilled appellate practitioner can ensure that the most compelling possible record and arguments are developed.

Third, there can be a wide variety of rulings that require appellate intervention. The most frequent arise when the trial court permits discovery of privileged information or compels the defendant to comply with discovery requests that are inordinately burdensome and expensive. In this type of situation, awaiting an appeal after judgment means ringing a bell that cannot be un-rung.

Another type of order that may support interlocutory review is one that, left standing, will turn the trial into a nullity. By way of example, the Texas Supreme Court describes such a ruling as one that is a "waste of time and money enduring reversal of improperly conducted proceedings." In Re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136–37 (Tex. 2004).

The most obvious are orders where the trial court erroneously exercises jurisdiction or refuses to enforce a forum selection clause or a jury waiver. Others are where the trial court refuses to exclude undisclosed or later-disclosed evidence, thereby permitting "trial by ambush," or refuses to conduct a hearing. To cite another example from Texas, an intermediate appellate court recently applied mandamus to correct an erroneous order denying a defendant's pretrial motion to permit the jury to consider the proportionate responsibility of non-parties. In Re CVR Energy, Inc., No. 01-15-00877-CV, 2016 WL 511091 *3 (Tex. App. Houston February 9, 2016) (Not yet released for publication.)

The client can realize significant benefits from engaging an EAC to carry out these responsibilities before trial. Aggressive motion practice may move a recalcitrant plaintiff toward a reasonable settlement number, or the EAC may ultimately spare the client an error-laden trial and an adverse result.

The EAC's Role During Trial

The role of the EAC during and immediately before trial may vary. Optimally, it is wise to integrate the EAC fully into trial and pretrial activities. The client who engages an EAC should take full advantage of the EAC's expertise in raising and preserving error.

Of course, a trial team is like a ship at sea. There can be only one captain, as disagreements can spell disaster. An EAC should never dispute or second-guess calls made by the lead trial counsel during the heat of trial. For example, trial counsel may make a strategic decision not to object to particular evidence. To ensure that the trial proceeds smoothly and error is preserved, the trial team and EAC should agree in advance on the legal "game plan" as to what documents and testimony should be excluded.

In the immediate run-up to trial, the EAC should take the lead on preparing all evidentiary motions and the jury charge. The EAC should prepare "pocket briefs" concerning thorny evidentiary issues and be present at any pretrial conference or hearing held for the purpose of ruling on preliminary and evidentiary issues. Ideally, the EAC should be present during the entire trial. If this is not feasible or cost-effective, the EAC should at least be present during critical points in the trial.

The position of the EAC in the courtroom is subject to the judgment of counsel and the client. Often it will be beneficial and prudent to place the EAC at the counsel table. If there are concerns about the optics of over-lawyering, the EAC may be positioned on the far side of the bar. But wherever the EAC sits in the courtroom, he or she should have reasonable access to trial counsel.

When the EAC is present during the presentation of evidence, he or she should carefully observe the proceedings. The EAC should bring trial counsel's attention to any slipup in preserving error. The EAC should be available to answer the trial team's questions concerning the procedure for preserving error.

Depending on the jurisdiction, raising and preserving certain classes of error may be particularly fraught with risk. The procedure for preserving certain issues may be arcane and redundant, and failing to comply with each procedural requirement may result in waiver. Some of these issues are best handled by the EAC. Where that is not desirable or possible, the EAC should be available immediately to guide lead trial counsel through the process. Examples of these issues include granting of for-cause challenges against jurors, submission of requested jury instructions, and issues and motions for directed or instructed verdict.

There are two stages of trial where the EAC should play an integral role. The first is the directed or instructed verdict. If a written motion is required or prudent, the EAC will be responsible for its preparation. As a general rule, the EAC should see that evidentiary sufficiency is challenged with respect to every disputed element of the plaintiff's claim. Often, the EAC will orally argue the motion, but this might vary depending, for example, on the rapport between trial counsel and the court. The second is the charge conference. In most jurisdictions, courts hold an "informal" charge conference, where counsel and the court discuss the charge, followed by a formal conference where objections are made and questions or instructions are formally offered. Both are critical events.

During the informal conference, the EAC must argue (1) for submitting desired instructions and questions and (2) against submitting undesirable instructions and questions. The EAC must be conversant with the relevant law and must be able to discuss the issues in a persuasive and substantive manner. During the formal charge conference, the EAC must preserve charge error by objecting to the charge, securing a ruling overruling the objections, tendering requested instructions, and obtaining a ruling denying the request.

The EAC's Role After Trial

Once the jury returns the verdict, the EAC typically will take over the lead role and prepare and argue post-trial motions, such as for judgment notwithstanding the verdict or for a new trial. In addition, the EAC will take primary responsibility for litigating the form of the judgment. The EAC then will continue as lead appellate counsel.

It is at the appellate level where the fruits of engaging the EAC will be realized. The court of appeals will be reviewing a pristine judgment, which will smooth the task of holding a favorable outcome or reversing an adverse one.

Appellate Counsel in Mass Torts

Appellate counsel can serve an even more valuable function in high-exposure mass tort cases, such as asbestos litigation. Such cases are routinely filed in extremely plaintiff-friendly venues, and plaintiffs' counsel have developed a formidable bag of tricks for achieving significant verdicts.

Clients who are mired in asbestos and similar mass tort litigation should consider engaging appellate counsel to develop an Advanced Motion and Appellate Program (AMAP) for the litigation. A well-designed, well-executed AMAP can produce almost immediate savings on attorneys' fees by reducing duplication of effort, but the real benefit lies in more-favorable case results and accompanying reductions in settlement values.

An AMAP can achieve this objective by:

  • Increasing the strength of legal arguments presented on behalf of the client;
  • Increasing the quality and consistency of work product across jurisdictions and cases; and
  • Enabling the client to move the law incrementally by targeting cases and jurisdictions.

The Components of an AMAP

There are three components to any AMAP: work product, targeting and advocacy. Each is discussed in detail below.

Work Product

The core of the AMAP is a body of high-quality briefs and motions that address diverse recurring and important legal issues, such as:

  • Causation theories, such as the pernicious "every-exposure" theory in asbestos litigation
  • Motions attacking certain expert testimony
  • Certain trial tactics, such as those used in the "reptile theory"
  • Issues that are unique to the client, such as the need to exclude or limit a damaging document or harmful testimony by a former employee.

The AMAP may focus on a single problematic issue or any number of recurring issues. The work product should set forth cogent, compelling, and consistent arguments. While remaining as consistent and uniform as possible, the briefs and motions should be tailored to the law of each jurisdiction.


The work product should be used judiciously. The initial goal is to develop precedent that can be used in subsequent cases. The most powerful precedent is made by the appellate courts, but a favorable trial court ruling also can be valuable.

The idea is to build momentum gradually. A favorable result in one particular jurisdiction or case can be cited as precedent in another jurisdiction or case. Bad precedent cannot be avoided altogether, but it can be minimized by properly targeting cases and jurisdictions. For example, a motion attacking causation on behalf of a low-dose asbestos client should be initially pressed in a case where there is evidence that the plaintiff had other significant exposures.

Plaintiffs' lawyers, of course, are savvy and a good one will recognize the danger of a negative precedent to the defense and attempt to settle for an invitingly small amount of money. When this occurs, the client will need to balance the benefits of settling against the potential long-term strategic advantage of a favorable precedent.


The attorney best suited should make the argument. Often, this will not be the trial lawyer or the attorney handling the case on a daily basis but, instead, might to be the one who prepared or oversaw preparation of the work product. This attorney will be intimately familiar with all facets of the argument, and repeat experience in arguing the motion will produce a superior approach to the issue.


Lawsuits are not won by luck or accident. By the same token, favorable precedent does not just appear. Both are the result of systematic, high-quality advocacy, which includes engaging and embedding appellate counsel early in the litigation process. Integrating appellate counsel can be invaluable in the single high-exposure case or across cases and jurisdictions in mass torts. Far from adding to legal expenses, this approach can yield significant cost savings to the client in the short term and the long term.

Originally published by DRI: In-House Defense Quarterly.

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.

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