You should have called me sooner.

• Author: Elligett, Raymond T., Jr.
• Position: Use of appellate lawyers

Appellate counsel may be able to assist in a rehearing motion or a petition for discretionary review of a written opinion, but by then the case may not be retrievable.

The great Marlon Brando line from The Godfather comes in handy about every month or two. A trial lawyer calls to say he or she took an appeal and just received an affirmance, or a per curiam affirmance. Either way, I tell them: "You should have called me sooner."[1]

Appellate counsel may be able to assist in a rehearing motion or a petition for discretionary review of a written opinion, but by then the case may not be retrievable. Trial counsel and the party might have been better served by associating an appellate expert earlier in the case.

The growth of appellate practice as a specialty is well documented.[2] This article will not dwell on the obvious advantages of having an appellate practitioner work on the appeal. It addresses how trial counsel might consider using an appellate specialist during the trial and pretrial litigation phases.

Pretrial Proceedings

When a potential case appears novel or complicated, trial counsel may want to retain appellate counsel to help develop viable theories and assist in drafting the pleadings. This can apply to defenses as well. Working through tough legal issues up front also may save time and money in the long run.

In a case in which the plaintiff faces a potential legal bar, such as a statute of limitations problem that depends on which statute applies, counsel may want to draft a complaint that details the facts so the court can evaluate the legal issue. If the defendant is going to prevail on the limitations defense as a legal matter, better for it to happen early, before investing substantial litigation time and expense. If the trial court does dismiss the complaint, the plaintiff may ultimately prevail on the legal issue on appeal.[3]

Failing to properly plead a claim or defense can lead to the plaintiff or defendant receiving an adverse directed verdict at trial or losing on appeal.[4] Trial counsel may want their law team to help brief and argue summary judgment motions. Today's litigators also realize how important motions in limine can be.

Multiparty cases present additional opportunities to make mistakes. Trial counsel may want to consult with their appellate lawyer when it appears one party may exit a case through a dismissal or summary judgment. This could signal the need not only for the plaintiff to appeal, but also for a...