Appellate Lawyers as Claim Consultants at Any Stage of Litigation

We often see lead trial counsel as the “star”: the top performer in the courtroom, at the mediation, in the deposition room or at other informal venues before trial. He or she “shines” and sells your defenses to a jury of locals, the mediator, key witnesses, and even opposing counsel, ultimately delivering the defense verdict, an early resolution or other good result. In describing lead trial counsel as the “stars” of the show, we genuinely acknowledge the key role played by these legal eagles who soar.

But, like any film that’s successful at the box office and critically acclaimed, we know there’s quite a production team behind the headliner with the top billing. And with any big legal production in which there is high complexity and high exposure—regardless of whether the insured has just been sued; is days, weeks or months from trial; or has just received a verdict—someone you may want to add to the mix is that other veteran of the legal stage: someone who’s a unique blend of storyboard artist and continuity supervisor, helping manage the script while ensuring the details and the big picture are never lost sight of.

This person is increasingly in demand, and is a specialist among specialists: he or she is your “appellate counsel in residence” (when referring to someone who is in the courtroom) or “appellate consulting counsel” (when referring to someone who may assist at any point in the litigation). Regardless of when you engage this person, his or her primary function is to consult and collaborate rather than take the lead; therefore, for short, I will use the term “appellate consultant.”

This article describes how claim professionals and others responsible for retaining top-notch litigation attorneys can decide whether to engage an appellate consultant at various stages of litigation, depending on the type of case involved, the stakes and other factors.

Before discussing when and why one might engage an appellate consultant, it’s first necessary to understand what distinguishes an appellate attorney from other lawyers. One key attribute is the ability to appreciate and clearly see the big picture while just as clearly understanding the finest details. Most people can perform adequately on one end of the “forest and trees” spectrum, but not often on both—and rarely well on both. Appellate lawyers, however, typically score very high on both ends. This rather unique ability is what causes many people to say appellate lawyers “see things others don’t.”

But this ability goes beyond “seeing” – there is also insight and a heavy amount of inductive reasoning going on behind the neurological curtain. A high percentage of appellate lawyers are creative and artistic; in this regard they can be confounding to their colleagues, many of whom eventually realize there is a fundamentally different way of thinking going on.

Appellate lawyers also tend to be highly collaborative, emotionally intelligent and capable of working on large, differentiated teams featuring a wide range of personalities. They can jump in on a new matter and understand what’s going on within a short timeframe, as if they’d been working on the case the whole time. (After all, they already do so every time they tackle a new appeal.) And, perhaps frustratingly to colleagues who really have been there the whole time, an appellate lawyer after being added to a team will inevitably spot a number of facts and issues—and offer a number of ideas—that often cause his or her colleagues to ask, “Why didn’t I see (or think of) that?”

Thanks to appellate lawyers’ collaborative nature, adding one to the mix is generally a non-disruptive decision and event. They do not seek the limelight, leaving that for lead trial counsel. They also do not seek to usurp the power or role of lead trial counsel. In fact, they prefer that existing power structures remain in place. In that sense, they do not function like monitoring counsel. “I’m here to help,” or perhaps “help me help you,” could easily be the rallying cry of appellate attorneys.

An additional distinguishing characteristic of appellate lawyers is that they are frequently the go-to lawyer in their firm for novel, “one-off,” far-from-routine, and just plain weird questions, circumstances and situations. They embrace complexity with open arms for the challenge it provides, but will avoid spending time chasing windmills or fruitlessly going down rabbit holes. They treat their client’s goals, directives, guidelines—and budget—like rules of procedure that define their mission and purpose in a particular case.

The same reasons that cause attorneys to call upon an appellate lawyer within their own firm to address novel questions and odd situations are the ones that prompt claims professionals to consider retaining an appellate consultant. Typically, something remarkably different, unusual, or unexpected has happened in a case, and lead trial counsel (through no fault of his or her own) cannot offer a clear explanation of recent developments, or any obvious or reassuring recommendations. “I haven’t seen this before” is actually a common, honest assessment lead trial counsel will make in such situations.

Another scenario that can prompt the retention of an appellate consultant is when the claim professional recognizes early on—perhaps even before the filing of a lawsuit—that a matter is fundamentally different than ones that might ordinarily be assigned to certain attorneys with whom the professional regularly works. In such a situation, particularly when the stakes and potential exposure are higher, an appellate consultant can offer an early assessment of the matter and assist in the selection of lead trial counsel who would be better suited to handle its unique nature. And that person (or recommended type of person) may or may not be from the appellate consultant’s own firm.

If trial is near, bringing in an appellate consultant to take on “residence” in the courtroom can greatly aid in preserving the record at trial, thereby enhancing the insured’s ability to protect a good result on appeal, or challenge a bad one. As appellate counsel in residence, this person is an extra set of eyes and ears and adds more perspective to the proceedings for the benefit of the claims professional and lead trial counsel.

And of course, an appellate consultant is invaluable during the post-trial stage of litigation, the traditional area in which most appellate lawyers cut their teeth as judicial law clerks or as apprentices to older appellate lawyers within their firms. Notably, even if a claims professional is inclined to stick with the horse (i.e., lead trial counsel) he or she rode in on to the verdict or judgment, having an appellate consultant involved in the post-trial work and the appeal can be of great benefit to everyone who participated in the matter up to that point.

In cases of high complexity and exposure, the earlier an insurer engages an appellate consultant, the more impact there can be for the insured. Examples of that impact include assisting with the following:

• affirmative defenses, counterclaims, and cross-claims: Ensuring sufficient facts and elements are pled, and that all potential theories and defenses are considered under applicable law, in light of other parties’ theories and allegations, as well as the appellate consultant’s experience in other matters.
• motions to dismiss, to strike experts (under Daubert, Frye or other permissible bases), or for summary judgment: These motions are like mini-appeals, requiring the development of an effective theme and a mastery of the big picture and the details underlying a case; often (particularly in federal court), these motions are decided “on the briefs,” without oral argument.
• jury instructions: More and more, appellate consultants are being asked to take the lead on crafting the instructions; the earlier this process begins, the easier it is to develop defense themes and shape the pleadings and discovery more purposefully and efficiently.
• recognizing and seizing opportunities for interlocutory (pre-trial) appeals: Many states (and in limited circumstances, federal courts) permit immediate appeals (by right or by permission) when certain things happen in the case; appellate consultants will better recognize such opportunities and bring them to light for consideration, and will be more familiar with the process and procedure for maximizing the insured’s chance of success.
• witness outline review and refinement: Preparing to examine a witness is like framing a scene in a film; an appellate consultant can offer tips on how to avoid objections, remove clutter and ensure clarity within “the bigger whole” of the trial.
• motions in limine: These motions offer an excellent way to better educate the trial judge about the case; when presented in an effective order—and in the right number, without overwhelming (or underwhelming) the court—they can tell the judge a lot about a party’s preparedness for and mastery of its case going into trial, making the judge more likely to listen and give serious consideration to what the party’s attorneys have to say at key moments in the trial (particularly if the other side is not as prepared and fluent).
• pre-trial compliance materials: State and federal courts that require extensive pre-trial submissions (for example, a case summary or stipulated facts, witness and exhibit lists, proposed jury instructions and trial briefs) will appreciate the involvement of an appellate consultant, whose framing and writing skills—and high familiarity with the local rules and customs—will make the process of trying a case smoother and more efficient.
• attendance at trial: Appellate counsel in residence can argue certain pre-trial motions, think of and handle certain motions that may become necessary during trial, and advise lead trial counsel (typically during breaks) about technical or supplemental questioning needed of a witness to ensure that a good ruling on an objection stands, or that a bad ruling has a better chance of being reversed.Performing such functions frees lead trial counsel to “play to” his or her skills and focus on the jury; appellate counsel can focus on the trial judge and the “flow” of trial to identify areas needing reinforcement or exploitation to make a better record for any future appeal, regardless of the result at the trial court level.

Bringing in an appellate consultant, while very helpful in certain situations, is certainly the exception. The vast majority of claims and cases are routine and straightforward. In such matters, appellate lawyers are an unnecessary luxury and may not even be needed in the post-trial stage if lead trial counsel has at least a basic level of experience in handling appeals.

Complexity is the currency in which appellate lawyers trade. Cases of higher complexity that also involve higher exposure are the ones most likely to justify the retention of an appellate consultant. Everything seen by the appellate consultant and missed by others, every new insight drawn, and every unique idea generated by this person tends to provide value beyond the price of the time spent to see, draw or generate what otherwise wouldn’t have been added to the mix. Moreover, this person’s collaborative and helpful style and emotional intelligence make him or her a welcome, non-disruptive addition to the team. And like a good storyboard artist who can also function as a continuity supervisor in an epic film production, the appellate consultant uniquely understands how everything ties together at the macro and micro levels.

In all the above senses, the appellate consultant can be like a glue or special ointment helping to hold things together in the heat of battle when tempers, personalities, stressors, and natural human emotions might otherwise get in the way of maximizing the chance of obtaining a great result for the insured in a highly complex, high-stakes and high-exposure situation.

In writing the above words, I am mindful of the introduction to a favorite 80s television show from my youth: “If you have a problem … if no one else can help … and if you can find them … maybe you can hire … The A [Appellate]-Team.”

As a shareholder and leader of the Appellate and Complex Litigation Team at Sandberg Phoenix & von Gontard P.C. in St. Louis, Missouri, Sansone has served as appellate counsel in residence during multiple high-stakes trials receiving national attention, and regularly serves as an appellate consultant for claims professionals and lead trial counsel at all stages of litigation. In addition to product liability defense and appellate practice, he focuses in the areas of business litigation, class action defense, and insurancecoverage. Contact him at 314-446-4250 or at tsansone@sandbergphoenix.com