What Is Appellate "Strategy?"

Many clients – and lawyers – see an appeal as a stand-alone device, a bit of extra insurance should things go wrong at trial. Do discovery, try the case, and, if you get hit, call the appellate lawyer to draft a brief or two. That's a common misperception which, unfortunately, limits the power of an appeal to put things right.

Where huge dollars are at stake or a question important to an entire industry will be decided, clients and trial lawyers should be keeping an eye on the eventual appeal from day one. That’s the only way to maximize the chances of prevailing on appeal.

Identifying and framing issues. Unlike the trial lawyer, whose principal goal is persuading juries and trial judges, the hallmark of the good appellate lawyer is his or her ability to analyze, identify and craft legal issues. The courts of appeal have the power to make or change the law. The appellate strategist is trained not only in spotting and formulating issues to pique the panel's interest, but in providing persuasive reasons why the rule should be changed, limited or extended. They can help identify issues in your case, and assist in framing them, for maximum effect.

Consulting during trial. Appeals can be won or lost long before the notice of appeal is filed. The failure to object, preserve the record or raise an issue, can sink your chances of success . The appellate strategist can be invaluable in helping identify key issues, properly frame and preserve them, draft key dispositive motions, jury instructions, offers of proof and even trial briefs.

Grooming the test case. When the issue may affect an entire industry, or set the stage for other cases, corporate defendants should be looking for the proper case or cases to test the issue. Often, the goal is a published opinion, with precedential value, announcing to the world, e.g., that the defendant's product is defect free. Case selection can be critical. The test case must have the right kind of facts, with the minimum of procedural distractions. Venue - at trial and on appeal - should be considered, evaluated along with a host of other factors geared to maximizing chances on appeal. That's where the big picture appellate strategist comes in.

Preserving the record. Appellate courts live by two cardinal rules.

· They do not retry the case. They will not disturb the jury's fact and witness credibility findings. They look for prejudicial legal error, and typically apply presumptions in favor of the party who won below. The failure to object to an irrelevant, inflammatory piece of evidence will not be grounds for reversing the judgment. Not offering a proper jury instruction, or failing to propose corrections to incomplete or misleading ones, may limit the arguments for reversal available on appeal.

That's where the appellate strategist comes in, an insurance policy to button down issues of reversible error for appeal.

· If it's not in the record, it didn't happen. Take a photo with no film in the camera, and you have no picture. That’s also true of appellate courts. For example they will not even consider a critical ruling sabotaging your case, made at a sidebar conference with no reporter. The failure to make an offer of proof on what your excluded evidence would have shown typically sinks your chances to argue exclusion of evidence as a ground for reversal on appeal.

The appellate strategist knows when and how to assist in making the best possible record to maximize the chances of success should the need for an appeal arise.