One of the bright spots in the American judicial system is the appellate courts. If parties in lawsuits are not satisfied with the outcomes of their trials, they can appeal to higher courts. Today, with so many cases being resolved before going to trial, most cases reaching a trial tend to be significant cases. They also have a good chance of being appealed. Since success in appellate court is predicated to a great extent on the abilities of appellate specialists, it is wise to involve appellate attorneys before the trial process starts <m> and to select the ones best suited to argue cases in appellate courts.
Smart Business spoke with R. Alan York of Godwin Pappas Langley Ronquillo LLP about the role of appellate specialists in the trial process, and how litigants can benefit by involving them from the start.
At what point in the trial process should an appellate specialist become involved?
An appellate specialist should be involved from the beginning, especially in significant cases. These specialists can help provide road maps throughout the case by looking at evidentiary issues, how evidence may be introduced or excluded at the time of trial, and by working thoroughly on jury charge issues.
This practice gives the client a big picture perspective of the entire life by looking at predictions of the possible progressions that various cases may take. These predictions can help clients determine if it is preferable to go to trial or to try to resolve the matter through some type of mediated settlement.
Appellate specialists provide a perspective of what to expect after a trial.
Why would litigants want to include appellate specialists on their legal teams at the beginning of the legal process?
Appellate specialists do specific things, such as significant motion practice, motions for summary judgment, work on the jury charge, and preserve error at trial.
In the event that a case does go to trial, it is good to know if it has a significant degree of danger for a high exemplary damage award. An appellate specialist can look at that issue not only in terms of what the jury might do, but if the case approaches an appeal, how the appellate court might react to a large exemplary damage award. The appellate specialist provides a broader picture.
Does including an appellate specialist in the early stages of the legal process make good economic sense for business people involved in the legal process?
Business people are very cost sensitive. The idea of bringing on someone else to work on a case can sometimes be daunting for a client. In reality, bringing in an appellate specialist makes good economic sense, because it can ultimately save the client money.
Appellate attorneys work hand-in-hand with the trial lawyers during discovery, as the case is being prepared for trial, meaning they are already up to speed on the background of the case and are ready to run with the appeal. This approach is typically more cost effective than hiring the appellate specialist after the fact.
Doesn’t the inclusion of an appellate specialist in the entire legal process signal the client that the case is likely not winnable?
No. Attorneys have to make it clear to the clients that the case is not necessarily going to go to an appeal. Including an appellate specialist is simply one step in trying to figure out the best way to win, and not just a protection against a possible loss.
And when there is a victory, having an appellate specialist on the team can help preserve that victory if opposing counsel to appeal, because these specialists can help close loopholes that the opponents can try to exploit later at the appellate level.
Remember, both sides have access to appeals courts. If one side has an appellate specialist on board throughout the entire process and the other doesn’t, that may be a significant advantage for the one that does. In fact, it may mean the difference between winning or losing the case at any level.
How does a client choose a proficient appellate specialist?
One criterion in our state is to verify the attorney’s Texas Board of Legal Specialization certification of specialty in appellate law. Clients should also look for appellate specialists who have actually handled cases at trial, and who preferably have argued cases before the Texas Supreme Court. Those types of experience give them better perspectives of the overall legal process.
Another way is to seek recommendations from local, county or state bar associations or search through Web sites such as Hubbell-Martindale, which includes attorneys’ peer ratings.
R. ALAN YORK is the administrative partner of the Houston office of Godwin Pappas Langley Ronquillo LLP, and serves as chair of its Appellate Section. Reach him at [email protected] or (713) 425-7420.
