Most companies that experience a loss at trial ask the lawyers who represented them at trial to also handle the appeal. There are several good reasons for this. Trial counsel will be intimately familiar with the pre-trial and trial record. They will have thought about (and likely researched) the legal issues that are at the heart of the case. They will have developed a strong working relationship with in-house counsel responsible for the case. And, of course, there are obvious cost savings in having the firm that tried the case also handle the appeal.
Yet this customary practice also has drawbacks. For one thing, lawyers – particularly trial lawyers – are nothing if not persistent in their view of their cases. Once they have developed what they believe is a winning theory of the case, and once they have advanced that theory through years of discovery, motion practice and trial, they are unlikely to change their view merely because they were unable to convince the judge or jury of its correctness. While a fervid belief in the correctness of your position is commendable at the trial level, it may not be so commendable when that analysis has been rejected and you are forced to take an appeal. While fresh ideas and new approaches will be necessary for the appeal, they are unlikely to occur to lawyers who have handled the matter for years and are convinced that their analysis of the case was correct and that the judge or jury "just didn't get it."
In addition, issues that seemed important at the discovery and trial stage, and to which trial counsel devoted enormous time and energy, may not be important on appeal. Indeed, such issues could well be a distraction to an appellate court. For example, an evidentiary ruling that seemed patently erroneous, and caused untold agony to trial counsel, is unlikely to offer a basis for reversal. Similarly, there will be a temptation to use the appeal to secure vindication for outrageous conduct by the adversary – whether during discovery or at trial – even though such vindication will do nothing to further a reversal of the outcome below.
Finally, appellate advocacy requires a different set of skills than trial advocacy. Most obviously, an appellate advocate must be a superlative writer. While well-written briefs are helpful at the trial level, they are essential at the appellate level. An appellate lawyer must be able to synthesize a record that spanned years of discovery and motion practice, and thousands of pages of trial testimony and exhibits, into a clear and cogent brief (generally no more than 50 pages) that will convince a panel of judges who know nothing about the case that the result below was legally wrong. While passion and emotion play a useful role at trial, they are of lesser importance on appeal where the objective is to convince the court that the decision below cannot stand as a matter of law.
For a client facing a particularly important appeal from a disappointing trial court judgment, there are two potential options beyond merely asking trial counsel to handle the appeal. Neither requires abandonment of the attorneys who tried the case. One option is to continue relying on trial counsel to handle the appeal but retain a new firm to provide a "second look" at the case and the briefs. The second option is to select new counsel to handle the appeal (but with the assistance and support of the firm that tried the case).
Let's look at the second option first. Bringing in new counsel to handle the appeal is particularly appropriate in situations where the company has suffered an unexpected and disastrous result at trial and the case needs a totally fresh look. Our firm handled such an appeal in a widely publicized case involving hip-hop artist Ja Rule. TVT Records v. The Island Def Jam Music Group, 412 F.3d 82 (2d Cir. 2005), cert. denied, 74 U.S.L.W. 3720 (2006). The case involved allegations of breach of contract and tortious interference in connection with defendant's refusal to allow plaintiff to produce and distribute albums by a hip-hop trio that included Ja Rule, who was signed to a long-term contract with defendant. Following a highly contentious trial – which the trial court admitted had been "tainted" by inappropriate argument by plaintiff's counsel – the jury awarded plaintiff $132 million in damages, including $108 million in punitive damages. The award was reduced to $54 million following post-trial motions. This was precisely the type of case that cries out for a "fresh look" on appeal. What the trial court described as a "quarrel" between two competitors about whether defendant had breached its agreement to permit Mr. Rule (as part of a trio) to produce albums for plaintiff, and for which plaintiff established $125,000 in breach of contract damages, had escalated into a bitter, "take no prisoners" war in which our client was tagged by the jury with a $132 million award.
Bringing in new counsel for the appeal brought all of the benefits noted above: fresh ideas, the abandonment of unproductive arguments, and a non-emotional, law-oriented approach to the issues in the case. Nowhere were these benefits more noticeable than in the contrasting tones of the appellate briefs. Because we had not been involved in the bitter fights at and before trial, we had no difficulty walking away from the antagonistic tone that infected the trial. In contrast our adversary – whose trial counsel also served as appellate counsel – continued to apply their bombastic and accusatory approach to their appeal brief. Thus we engaged the Second Circuit in a dispassionate analysis of the legal issues; appellees engaged the Second Circuit with a re-run of the trial. Their approach was a major error: the Second Circuit reversed the judgment and left standing only the unchallenged breach of contract finding, for which the jury had awarded $125,000.
The second option for the appeal is to involve a second firm merely to provide a "second look" at the case and the briefs. This is particularly appropriate in cases where appellate counsel has a specific expertise in the substantive area of the case, or where cost constraints are driving the selection of trial and appellate counsel. The benefits of a fresh look at the case could apply to specialized areas such as trademarks and trade dress, copyright, employment law, false advertising, products liability and commercial disputes. Based on our firm's expertise in these fields, we have been brought in to provide a "second look" – and sometimes take over – appeals in these areas. In those situations, the client gets the benefit of having an experienced advocate take a fresh look at the case and the appellate briefs. It also allows new counsel to provide strategic and tactical suggestions that are unencumbered by slavish adherence to prior arguments and briefs or tainted by a desire for "revenge" on the adversary or opposing counsel. This form of fresh look is particularly cost effective. Because new counsel will not be called upon to draft the briefs or put together an appendix, but merely to provide advice and suggestions, the work will largely be performed by a single attorney working with in-house counsel and trial counsel. There is no need for a "team" of new lawyers.
Not every case warrants either of these approaches. In fact, a majority of your company's appeals may not. But where the appeal involves a major adverse verdict, or a final judgment that could profoundly impact your business, you owe it to your client to consider bringing in experienced counsel who can provide a fresh look at the case. In some cases it is appropriate to have new counsel assume primary responsibility for the appeal. In others, you may only want them to provide a "second look" at the case and the briefs. But either way, you will be insuring that you are not merely repeating the same strategy and arguments that proved unsuccessful at 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.
