Not Just Monday Morning
One of the jests that appellate lawyers often hear is that they are nothing more than Monday morning quarterbacks. After all, once the case is on appeal, the record is set and what could be called legal archaeology begins. Appellate lawyers sift the record for prejudicial error, erroneous legal interpretation, abuse of discretion, invited error, waiver, the absence of reversible error and so on. But forward thinking trial lawyers consult with appellate counsel during litigation. There are several reasons why this is good strategy.
Early consultation with appellate counsel can result in identification of alternative theories for prosecution or defense of the case. It can sharpen the focus on key factual issues needed at the summary judgment stage. Having appellate counsel assist early on can mean a more well rounded evaluation of the chances of success. It can also mean the application of specialized focus in mediation briefs, summary judgment and in limine motions, jury instructions. That's because appellate lawyers are often steeped in extremely nuanced areas of law and the latest high court pronouncements re the same. Incorporating such expertise into key briefs makes them much more effective. In a very real way, appellate counsel make an effective trial weapon.
And if there was ever a minefield for potential reversible error, waiver and other disasters, it's the 90 days after trial. Here, appellate counsel add signficant value to the prosecution or defense of key post trial motions. Whether bench trial or jury verdict, post-trial procedure is deep water. Better to have a seasoned navigator on board.
Some trial counsel are understandably reluctant to involve appellate counsel for the same reason they are reluctant to have co-counsel; exposure to second-guessing and criticism. But the effective appellate advocate is a team player, ready to consult on an as-needed basis and working to support, not supplant, trial counsel. Together, trial and appellate counsel form a formidable team. And after the trial dust settles, the archaeology is bound to turn up more treasure.
