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Briefly: 5 trial court moments to involve appellate lawyer

Erica A. Holzer (left) and Katie Barrett Wiik

Erica A. Holzer (left) and Katie Barrett Wiik

It is axiomatic that appellate attorneys work to hone legal skills particularly useful for advocating to appellate courts. These include identifying and framing issues to maximize chances for success, strong and clear legal writing, and oral advocacy acumen to engage in persuasive and responsive conversations with hot benches of appellate judges and justices.

Appellate rules and procedures are unique, and the legal community is small, and thus, the insights and experience that appellate attorneys develop from repeatedly filing in and appearing before appellate courts bring strategic and efficiency benefits to clients. For these reasons, clients are well-served by involving an appellate lawyer when considering an appeal — either to play a consulting role as a resource to the trial counsel handling the appeal or to first-chair the appeal with trial counsel remaining a key support.

Yet often the die that will determine appellate odds is cast in the trial court. Even the most skilled appellate attorney can do little to turn the tide if issues are not sufficiently preserved and trial objections are not timely made. For these reasons, appellate attorneys can add tremendous value while a case is before the trial court. In our view, below are the top five crucial trial court moments where appellate expertise can add outsized value long before any appeal.

Motions to dismiss and summary judgment

Dispositive motions create the contours of a litigation. They determine which claims proceed to discovery and which claims (if any) make it to trial. Particularly in federal court, where the plausibility standard applies, orders granting motions to dismiss are common. Appellate-minded advice can assist with identifying or avoiding legal barriers to claims, testing venue and jurisdiction, and ensuring all applicable defenses are preserved. Input from appellate counsel at the pleading stage can also pay dividends in informing discovery strategy. Waiting until summary judgment to consult with appellate counsel, after the potential body of trial evidence is closed, may be too late.

If an appellate-focused attorney has not been consulted before trial counsel is preparing to bring or defend against a summary judgment motion, this is a natural time to involve appellate counsel. By this time trial counsel has been immersed in the details of the case and its documents and characters for months if not years, and a fresh, objective, big-picture perspective is often helpful. Summary judgment can end the matter in the trial court entirely or narrow it so dramatically that trial of remaining claims becomes undesirable, driving settlement dynamics towards resolution. Summary judgment is also a moment to raise or re-raise issues that can terminate claims as a matter of law, setting the stage for pre-verdict motions for judgment as a matter of law and post-trial renewed motions. Involving an appellate attorney when creating the summary judgment record can also help ensure that everything that would be useful when defending (or seeking to overturn) a grant of summary judgment is properly filed in the trial court. Hard-won discovery admissions are meaningless at the appellate stage if they are not actually made part of the trial court record.

Injunction motions

Cases involving injunction motions also benefit from an appellate lens. In both state and federal courts, orders granting or denying injunction motions are typically immediately appealable, and the standard of review is highly deferential to trial court decisions. It is particularly important to make the best trial court record possible whenever the appellate court will be deferring to the trial judge’s broad discretion. The legal standards for obtaining injunctive relief infrequently change, so prior experience analyzing and applying such factors is highly transferrable.

Expert motions and motions in limine

Motions regarding the admissibility of expert opinions or certain categories of trial evidence are also key inflection points that can change trial trajectory. Getting an opponent’s expert excluded or foreclosing certain avenues of trial evidence can create and build pretrial momentum. In the most dramatic instances, the exclusion of evidence can warrant a grant of summary judgment or judgment as a matter of law because a required element of a claim goes unproven. Evidentiary issues are also reviewed by appellate courts with highly deferential standards of review, so it is essential to “get it right” before the trial court.

Trial monitoring

Involving appellate counsel in reviewing and contributing to drafts of pretrial filings is also a good idea. In addition to motions in limine, jury instructions and verdict forms are particularly important because they articulate and embody the legal standards against which the evidence will be considered. For both, it is critical not only to propose sound instructions and thoughtful verdict forms, but also to lodge objections to those advanced by the other party with enough detail that the trial court can understand and respond.

When the trial stakes are high, monetarily or otherwise, having appellate counsel physically present on-site with the trial team is ideal. There are countless moving parts and logistical tasks for trial counsel and their team to complete. Having an appellate attorney present in the courtroom, focusing on the big picture and ensuring that the most critical evidentiary issues are preserved is key. Additional research and writing capacity is also typically welcome, as mid-trial briefs on the important evidentiary disputes can be a burden for the attorneys prepping the next day’s witness testimony and cross-examination. Appellate counsel can also take the lead preparing appropriate motions for judgment as a matter of law, oral or written, as well as language for and objections to final jury instructions.

Post-trial motions

Finally, appellate counsel can add substantial value when it comes to bringing post-trial motions. The most common post-trial motions are renewed motions for judgment as matter of law, motions for a new trial, motions for amended or additional findings, or motions to alter or amend a judgment. Post-trial motions ensure that the trial court has the opportunity to hear and rule on any legal challenges to the verdict or the fairness of trial proceedings and to correct any evidentiary errors. These motions can also have substantial influence upon the framing of appellate issues and the standard and scope of the appellate court’s review.

These “Top Five” trial court moments are not the only points at which engaging appellate-minded counsel can pay dividends. Class certification and venue transfer motions are other examples. Any litigation inflection point or moment where the strategic trajectory of a case can be meaningfully impacted is a moment ripe for a conversation with an experienced appellate lawyer. An appellate lawyer’s toolkit helps strengthen the case during trial and also helps shape the strongest record for an appeal. And sometimes, engaging appellate counsel at the trial court level helps make the case go away, eliminating the need for an appeal entirely.

Erica Holzer is a partner and co-chair of the Appellate Practice Group at Maslon LLP, where she represents clients in complex commercial disputes, products liability litigation, and insurance coverage actions.

Katie Barrett Wiik is a partner in the Minneapolis office of Saul Ewing LLP and a Vice-Chair of the firm’s national appellate practice group. Her practice focuses on appeals and commercial litigation.

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