The Value Of Involving An Appellate Lawyer Early In Litigation

Sunday, October 4, 2009 - 01:00

Editor: Jack, tell us about your background.

Reiter: I graduated from the University of Florida, College of Law, with high honors. I head the firm's appellate practice department. I have been an appellate practitioner for about 15 years, and I am board certified in appellate practice by the Florida Bar. In Florida, board certification is required to be deemed a specialist in an area of law. I am also the former chair of the Florida Bar Appellate Court Rules Committee, which is a statewide organization that promulgates and revises the Rules of Appellate Procedure and then sends proposed revisions to the Florida Supreme Court for approval.

I am currently secretary/treasurer of the Appellate Practice Section of the Florida Bar and chair of the Dade County Bar Appellate Court Committee for the second year. I have published many articles discussing aspects of appellate practice, and I frequently speak on appellate issues.

Editor: What is an appellate lawyer and what is an appellate specialist?

Reiter: An appellate lawyer is a person who participates in litigation support and handles appeals to a higher court. He or she isolates or highlights possible errors that occurred during the lower court proceedings and then ultimately is involved in the presentation to the higher court. In Florida, a lawyer who is board certified by the Florida bar has gone through extensive peer review and has passed a test that is given by the Florida Bar's Appellate Practice Certification Committee.

Editor: What does an appellate lawyer do that a trial lawyer can't do?

Reiter: As a case proceeds, an appellate lawyer and trial lawyer have separate roles, which may on occasion overlap, but are quite different. The trial lawyer is focusing on winning before a jury or a trial judge. An appellate lawyer has to look at a case from a broader perspective. His or her contribution is to make sure that if the case goes up on appeal, the client's rights are preserved at the trial level for purposes of appeal. The goal of the appellate and trial lawyer is to work together as a team to maximize the ability of the client to achieve its goals when and if the case is appealed.

Editor: What is the best time to consult an appellate practitioner?

Reiter: The appellate lawyer should get involved in a case as early as possible so that he or she can start assisting the trial lawyer. It is extremely helpful to involve an appellate lawyer in the preparation of summary judgment motions or other potentially dispositive motions. I frequently prepare motions in limine prior to trial. I will often be present at the trial itself and handle arguments on such motions.

Editor: Are there situations where the involvement of the appellate lawyer is particularly necessary?

Reiter: Involvement of the appellate lawyer is particularly necessary at the trial level in any type of litigation in which the position of a party is based on a legal rationale on which the appellate courts do or may differ. Knowing how a court has ruled in the past is no guarantee of what the future holds, but when as an appellate lawyer you closely monitor the path of precedent, it does provide you with a guide that enables you to provide helpful advice to the trial lawyer about the appropriate legal strategies to use at trial.

Editor: If appeals begin only after a case is concluded, why involve an appellate lawyer before or during trial?

Reiter: The main reason is that having the appellate lawyer involved before and during the trial enables him or her to become an integral part of the trial team. The appellate lawyer then weighs in and participates in strategy and decision-making that may not only help at the trial but will assure that issues will be preserved for purposes of presentation at the appellate level. If, for example, you want to have your appellate lawyer involved in preparation of post-trial motions, having the appellate lawyer participate during and before trial will give the appellate lawyer a head start.

Editor: What is the benefit of having an appellate counsel handle pretrial and post-trial motions?

Reiter: Having an appellate lawyer prepare pretrial and post-trial motions can create the framework for the appellate review proceeding. This can eliminate potential problems that could otherwise undermine a successful jury or bench trial because the presence of an appellate lawyer may have helped identify and protect against possible errors in those motions.

Editor: Doesn't bringing in an appellate lawyer add extra expense? What if you win at trial?

Reiter: Although a cost is involved in hiring another lawyer, that cost is more than offset by the benefits. By involving the appellate lawyer early it frees up the trial lawyer to have the appellate counsel do certain things that the trial lawyer might otherwise have to spend time doing.

You still benefit from an appellate lawyer if you win and the other side appeals. Having an appellate lawyer already on board will help you maintain the victory. An appellate lawyer is just as important to sustaining a victory as he or she is to trying to reverse a loss.

Editor: Can you typically recover your appellate attorneys' fees if you prevail and are entitled to fees under a contract or statute?

Reiter: That is something that is often decided at the state court level, and of course, states may approach it differently, but it is quite common that a contract or state statute provides that the prevailing party is entitled to attorneys' fees both at the trial level and on appeal. In Florida, for example, a statute specifically says that if recovery of attorneys' fees is allowed at the trial level under a contract or a state statute, then the prevailing party is also entitled to attorneys' fees for an appeal.

Editor: What types of issues can an appellate lawyer address that a trial lawyer cannot?

Reiter: An appellate court is not a court of first review and only in rare circumstances will an appeals court hear something for the first time that was not expressly presented to the lower court judge for consideration.

It is very important for an appellate lawyer to make sure that the trial lawyer is properly preserving the issues. Did the trial lawyer properly say that evidence should be admitted? Did the trial lawyer object at a time when an objection was necessary? Did the trial lawyer submit the right jury instructions? Did the trial lawyer appropriately object to a verdict form if necessary? All of those issues make it important for an appellate lawyer to be available throughout a trial to guide the trial lawyer. Usually, if issues surrounding these questions were not properly preserved, they can't be raised on appeal by an appellant.

If the trial lawyer wants to focus on making sure that the most effective case is presented to the judge or jury, the appellate lawyer can relieve the trial lawyer by handling motions in limine and post-trial motions, motions for directed verdict at the close of the evidence, preparing jury instructions, the verdict form, and handling any specific legal or evidentiary issues that may arise. That gives more freedom and flexibility to trial lawyers to do what they do best.

I am often involved in the pretrial strategy and in the preparation of pretrial and dispositive motions. Thus, if the other side appeals, I am already knowledgeable about the facts and the law. I have also been hired many times right after an adverse verdict. I come in to prepare the post-trial motions or to respond to the other side's post-trial motions. That gives me a head start in making sure that everything is properly presented to the judge so that if his or her decision is appealed, the issues are preserved.

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