Appellate Assistance at the Trial Level

In a recent article in the L.A. Times, the author, Laura Ernde, noted that more and more trial attorneys are turning to appellate attorneys for help before there is a final judgment. Appellate attorneys can be of great assistance in fashioning motions in limine, jury instructions and special verdict forms. One appellate specialist, Jerry Falk of Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco, described a case where one of his clients lost a $90 million contract fraud case because of a technicality. By the time Falk got involved, there was nothing he could do.

All of the appellate attorneys interviewed for the article noted a change in trial preparation in the last ten years as trial attorneys are willing to seek assistance to prevent errors and make sure they have adequately preserved the record. Big firm practitioners at Reed Smith and Horvitz & Levy in Southern California indicated that bringing in an appellate specialist at the early stages of trial preparation is almost “standard practice.” Small firms should also incorporate this intelligent planning into their trial preparation. This wisdom applies with equal force to motions that can terminate your case, such as a motion for summary judgment, an anti-SLAPP motion, or even a demurrer.

Having worked with trial attorneys, I have often told them of the need to think about the appellate process as they handle their cases at the trial court level. I’ve written articles and spoken frequently on the subject. The problem is that these warnings sound great while the attorney is attending a conference, but the lessons are soon forgotten when the attorney returns to his or her daily routine. I felt there was a need to publish these tips in a format that could be saved and referenced when necessary.

This blog is meant to be interactive. I welcome your comments and experiences. In future blogs, I look forward to having my colleagues and members of the judiciary share their wisdom and experience. Hopefully, this will enable trial attorneys to avoid many mistakes that commonly occur and either win or lose their cases on the merits.