When should a litigation attorney bring an appellate attorney onto a case? It's not just at the end, after the judgment has been issued. Rather, an appellate attorney can be a valuable member of a litigation team during all stages of a litigation matter.
An appellate lawyer is valuable as a strategic partner in the early stages of litigation. An appellate lawyer can help analyze the issues presented in a potential new claim, help frame the issues in the pleadings, and argue or defend motions to dismiss. An appellate lawyer can help address jurisdiction and venue issues that often arise at the beginning of a case. An appellate lawyer can help the litigation team anticipate and address potential issues that could arise later in the case.
As to discovery, an appellate lawyer can help frame discovery requests and deposition question to best position the case for summary judgment and trial. An appellate lawyer's assistance is sometimes vital in discovery motion practice, as the scope of permissible discovery can make a game-changing difference in a case. An appellate lawyer can advise on whether any of the trial court's discovery orders can be immediately reviewed by an appellate court, and whether it makes strategic or economic sense to do so.
Appellate lawyers are skilled in research, writing, and oral advocacy. Thus, it makes sense to have an appellate lawyer's assistance on summary judgment and other dispositive motions. An appellate lawyer can help draft clear, concise, and persuasive motions. A good appellate lawyer will have access to a wide variety of legal research tools, including databases and resources not included in standard legal research plans.
Appellate lawyers can also provide valuable advice for mediation and settlement negotiations. An appellate lawyer can bring a fresh set of eyes to analyze the strengths and weaknesses of a case. An appellate lawyer can anticipate the legal issues that are likely arise at trial, and advise on the risk of various trial court outcomes being reversed on appeal. An appellate lawyer can contribute to drafting pre-mediation memos and opening statements, thus helping to clarify the issues for the client, the mediator, and the opposing parties.
There are many ways for appellate counsel to contribute to trial preparation and trial. An appellate lawyer can draft motions in limine, jury instructions, verdict forms, and pocket memos. An appellate lawyer can argue motions for directed verdict and other complex legal issues that may arise at trial. An appellate lawyer is a key member of the trial team for ensuring that objections are properly raised and preserved for appeal. Conversely, an appellate lawyer can help the trial team avoid making costly legal errors that could cause a favorable outcome to be reversed on appeal. An appellate lawyer on the trial team can also quickly analyze whether motions for new trial or for judgment notwithstanding the verdict are appropriate.
And of course, an appellate lawyer is valuable for any appellate proceedings that may occur after trial. If the appellate lawyer was part of the trial team, he or she will already be familiar with the case. Thus, the appeal can be handled more efficiently if the appellate lawyer does not have to come up to speed on an unfamiliar case.
In short, including an appellate lawyer on the litigation team can provide valuable assistance throughout the litigation process. Delegating litigation tasks to an appellate lawyer allows allows the litigators to focus on discovery, witnesses, and trial strategy.