January 13, 2025
Integrating appellate counsel into your litigation team can provide a fresh perspective that helps shape your strategy. Each member of your team brings a unique viewpoint. The pre-trial litigator has lived with the case for years and understands its intricacies. Expert witnesses offer insights into facts that may not be clear to laypersons. The trial lawyer has experience with numerous cases and juries. The appellate attorney views the facts on the cold page, considers the law, and compares it to the constantly evolving body of case law.
The unique perspective of appellate counsel is invaluable. They look at the case from a different angle, focusing on the legal principles and how they apply to the facts of the case. This can help identify potential issues that may not be apparent to those who have been involved in the case from the beginning. Additionally, appellate counsel can help ensure that the record is preserved for appeal, which is crucial if the case does not go in your favor at trial.
Appellate counsel can also assist in developing legal arguments that are more likely to be successful on appeal. They are familiar with the standards of review that appellate courts use and can tailor arguments to meet those standards. This can increase the chances of success on appeal and provide a stronger foundation for the case at trial.
While it may not always be practical, integrating appellate counsel earlier in the process is generally better. There are some markers to look for. High-value cases (over $1 million), multi-issue cases (e.g., labor law with defendants fighting about coverage or indemnity; auto cases involving commercial tractor-trailers), cases with novel but discreet legal issues that can add complications (e.g., personal jurisdiction, witness preclusion, challenges to expert testimony), and cases where a trial seems highly likely1.
In high-value cases, the stakes are higher, and the potential impact of an adverse decision is greater. Having appellate counsel involved from the beginning can help ensure that all potential issues are identified and addressed. This can help avoid costly mistakes and increase the chances of a favorable outcome.
Multi-issue cases can be complex and involve multiple legal principles. Appellate counsel can help navigate these complexities and develop a strategy that addresses all the issues. This can help ensure that the case is presented in the best possible light and increase the chances of success.
Cases with novel but discreet legal issues can be particularly challenging. Appellate counsel can help identify these issues and develop arguments that address them. This can help ensure that the case is presented in a way that is more likely to be successful on appeal.
In cases where a trial seems highly likely, having appellate counsel involved from the beginning can help ensure that the record is preserved for appeal. This can be crucial if the case does not go in your favor at trial and you need to appeal the decision.
Appellate counsel can assist in preserving your record by preparing motion papers that include the arguments the Appellate Division looks for when reviewing motions. Additionally, having appellate counsel review your motion papers and provide a sounding board can reduce the chances of not preserving an argument1.
Preserving the record is crucial for a successful appeal. Appellate courts review the record to determine whether the trial court made any errors. If the record is not properly preserved, it can be difficult to raise issues on appeal. Appellate counsel can help ensure that all potential issues are identified and addressed in the motion papers, which can help preserve the record for appeal.
Having appellate counsel review your motion papers can also provide a fresh perspective and help identify potential issues that may not be apparent to those who have been involved in the case from the beginning. This can help ensure that all potential issues are addressed and increase the chances of success on appeal.
Integrating appellate counsel into your litigation team can provide a fresh perspective, help develop legal arguments that are more likely to be successful on appeal and ensure that the record is preserved for appeal. While it may not always be practical, integrating appellate counsel earlier in the process is generally better, particularly in high-value cases, multi-issue cases, cases with novel but discreet legal issues, and cases where a trial seems highly likely.