The trial lawyer has a good handle on the evidence and frequently a different perspective about the trial. “A lot of what goes on during trial is about nuance and how you frame the case for the jury,” she said.
“Appellate counsel brings another set of eyes, more than just a second trial lawyer,” she said, because appellate counsel has a similar perspective to the appellate court.
That difference in perspective is why it’s best to bring appellate counsel in at the post-trial motion stage, Van Dyck continued. “You want to frame what’s going upstairs.”
That should start at the post-trial motion stage, Van Dyck said, and a thoughtful judge will address the issues on appeal in the post-trial order. If an attorney wants to change the focus in the case, “it’s easier if you go in on the ground floor.”
For example, Van Dyck continues, she worked on a case in the 9th Circuit involving an injured railroad employee, to which federal law usually applies. But Van Dyck thought the state law claim was the only one likely to succeed. The plaintiff had lost on summary judgment but the appellate court reversed on the state claim, keeping the case alive.
In Minnesota, Fish v. Ramler Trucking said that a third-party tortfeasor’s liability to an injured employee for a workplace injury is not reduced by the employer’s fault. To Van Dyck, the issue was that the case should be presented as an exception to the comparative fault rule, which is how the Supreme Court ruled.
A current appeal on which Van Dyck is working involves Polaris Inc., in Medina, which has been embroiled in lawsuits over its ATVs that have a tendency to catch on fire, including a case titled Colby Thompson v. Polaris. The company has recalled hundreds of thousands of vehicles linked to injuries and deaths, it has been reported. Right now the case involves an interlocutory appeal over a piece of evidence, produced to the plaintiff, that may be a safety protocol or may be legal advice and thus subject to a clawback. Stay tuned.