3 Top Tips for Trial Lawyers ... From Appellate Counsel

By Johanna Schiavoni
2020 SDCBA President

Trial often feels like the pinnacle event in the life of a case for both the client and trial attorney. But the work doesn’t end when the verdict comes in. In most cases, that’s when an entirely new set of work begins. And unlike trials, appeals involve different strategies, procedures, and perspective. That’s why hiring an expert appellate lawyer is a critical component of success for your case and client.

Appellate counsel can bring different, yet complementary, skills to a trial team. And sometimes the best way to avoid a trial or settle a case is to have strong arguments for a potential appeal. Let’s look at three ways appellate attorneys are beneficial to your client and litigation team.

The Importance of Pre-appeal Preparation 

Although an appeal typically occurs after trial or a final judgment from the court, appellate litigation, and good strategy, should start before trial. Preparation is key, and so is laying the groundwork for a potential later appeal. Making the right arguments at the right time—and knowing when and how to challenge or defend the court’s trial rulings, often on a short timeline—can be critical to securing a favorable outcome in post-trial proceedings or on appeal. 

Bringing an appellate lawyer into your trial team can be a great asset in helping prepare dispositive motions, pre-trial motions in limine, “pocket briefs” on evidentiary issues that arise during trial, jury instructions and special verdict forms, or motions for nonsuit, directed verdict, and judgment notwithstanding the verdict (or their federal equivalents). While trial lawyers are busy thinking about witness prep and the day-to-day aspects of trial, appellate lawyers can think about positioning the case to preserve the best outcome after trial—in case that’s necessary.

Indeed, the best way to win your appeal is to win first in the trial court.

The All-important Appellate Briefs

Once you arrive at an appeal, the most important part of the appeal is the written briefs, as an increasing number of appeals are decided without oral argument. Appellate briefs—and the issues and arguments raised—benefit from expert research and writing skills, strategic experience, and unique insight. This is where an attorney who specializes in writing appellate briefs can make all the difference in telling the story of your case on appeal. 

Appellate briefs should not simply re-hash the case as it played out in the trial court. The briefs must address with laser focus the key arguments that could preserve or overturn the judgment. They must demonstrate keen awareness of the appellate standard of review—that is, the lens through which the appellate court will view and decide the case. The briefs should anticipate questions and address obstacles the court may face in reaching your desired outcome. The tone and arguments also must deeply understand the audience—a panel of judges, rather than a singular (and very busy) trial judge or a jury. And the briefs must clearly articulate the relief sought and provide the court a roadmap for how to reach your desired result.

The Impact of Strong Oral Advocacy

Oral argument is increasingly infrequent, but when it happens, it is a vital step in your case. It provides the panel of judges with potentially differing views coming into the argument with the opportunity to ask questions and dig deeper into troubling issues. Having appellate counsel skilled in anticipating and answering the court’s questions is critical. An appellate expert can help advance affirmative arguments and avoid potential pitfalls at oral argument. This focus can make a big difference in your case.

Making Your Life Easier and Your Case Stronger

Preparing to win a potential appeal while you’re still in the trial court is smart strategy. Consider consulting with appellate counsel to help avoid pitfalls, preserve issues, prepare critical last-minute trial briefing, and position your case for the best chance of success. 

Then, if your case does go on appeal, rather than trying to fit drafting appellate briefs into a trial attorney’s otherwise busy schedule, hiring an appellate expert to prepare briefs can bring a fresh perspective and insight, as well as increase the chances of success on appeal against tough odds. They also will help with preparing a strong oral argument that addresses the court’s specific questions. And, finally, an appellate expert can help you and your client navigate complex post-appeal procedures.

These are just a few critical steps trial lawyers and clients should consider to set up a challenge to a negative outcome or preserve a great outcome from your trial.