Let us tell you a story. One fine day a wild boar was sharpening his tusks against a tree stump.
A passing fox scoffed, “We’re in no danger.”
“Not now,” replied the boar, “but when danger does come, if my tusks are dull, there will be no time to sharpen them.”
“OK, OK,” I hear you say. “Be prepared and all that jazz.” As a competent captain of your company’s legal affairs, you already know how to sharpen your weapons: Put your carrier on notice, preserve documents, hire crackerjack trial counsel, comply with discovery obligations, regularly inform stakeholders of the status and risks of litigation. And if it all goes south, you can always appeal.
Well, sort of. True, competent trial counsel can file a notice of appeal. But if trial counsel were (correctly) focused on winning the trial—or motion to dismiss or summary judgment—your company may have few issues to interest an appellate court. Those appellate tusks may be dull indeed. And if you won in the trial court? Trial counsel may have inadvertently sharpened your opponents’ tusks, handing them the strong appellate issues to undo your victory.
The earlier the better.
We got the call just hours before jury selection began. Could we get down to the courthouse to monitor the trial? By all appearances, the rear-end-collision case seemed utterly ordinary. But when we arrived, we saw something extraordinary. The judge was discussing detailed, substantive issues with counsel, including rulings … off the record. We asked to go on the record, but the judge assured us that she had an excellent memory and would recap anything important on the record. This was the judge’s first trial.
It was a brutal trial, culminating in a seven-figure verdict orders of magnitude beyond our expert’s assessment of the plaintiff’s injuries. Yet during an appellate mediation, we settled the case on favorable terms.
How? By sharpening our tusks well before the verdict.
First, we dammed up the holes through which appellate issues had been slipping. Trial counsel had gotten used to the judge’s style of conversing off the record and insisting that the parties resolve everything by stipulation. Neither does any good on appeal. We insisted on going on the record, infuriating the judge. Good: Better she be mad at us than trial counsel and now the judge’s intemperance would be etched into the transcript. And while we did continue to stipulate where it made sense—i.e., for issues unimportant to the trial or with little prospect of creating reversible error—we stood on our objections where they mattered.
Second, we hunted for issues where we wanted the judge to rule against us. Early on, the district court seemed conflicted about letting in the defendant driver’s unrelated robbery convictions. We objected, noting that the evidence was highly prejudicial but not probative, as we had conceded liability.2 The judge hinted that she did not see the convictions as especially probative but felt constrained by a statute that decreed such evidence “is admissible.”3 To pull the judge over the line, plaintiff’s counsel even agreed to present the convictions cursorily. These are ideal conditions for growing an appeal: (1) the error would be legal, not discretionary, as the judge had not even undertaken probative-versus-prejudice balancing; but (2) the impact on trial would be minimal, though not so minimal as to escape as harmless error. Preserving this orchid blossom still required tweezers: We had to maintain our objection and point the judge to cases showing that convictions could, consistent with the statute, be excluded as more prejudicial than probative. Yet we could not be too persuasive, as the judge might have undertaken the balancing test and then admitted the convictions as sufficiently probative, leaving us with a D-grade issue subject to abuse-of-discretion review.
It worked. We lost on the legal issue without the judge’s assessing the convictions’ probative value. To shore up the record, we also proposed curative jury instructions at the close of evidence, when it was far less likely that the court would fix the error. So when the jury smacked us with their verdict, we had an appeal. This issue and others like it provided substantial leverage during mediation.
Better late than never.
When the call comes after trial or judgment, our jobs are harder. In one case, we arrived for post-trial motions. We found lots of attorney misconduct during jury selection and closing argument—including comments that the plaintiff’s speeding was not true negligence (“you’ve all been there”) and that the jurors should ask themselves, “Should doctors help people” or, like defense experts, “just make money?” The problem? No one objected. All was not lost: we compared the misconduct to unobjected-to conduct in other cases that nonetheless constituted plain error and we wedded the misconduct to other, objected-to conduct, creating a theme of a verdict tainted by misconduct. We had other preserved issues. Had we been invited to the trial, though, we could have created a clean appellate issue subject to heightened scrutiny, not mere plain error.
In another case, trial counsel had argued that a purported oral, eternal discount on shipping services was not a valid contract. Counsel had not expressly argued that the individual shipping invoices (omitting the discount) constituted the parties’ contract, barring the court from imposing the discount as an extracontractual remedy. On appeal, we treated this critical new argument as elaborating on the preserved ones. We made do, but we could have served our client better had we parachuted in before summary judgment.
Black swans and issue insurance.
Corporate counsel have to justify every expense. Engaging appellate counsel takes a lot of both—justification and expense.
Your company’s leaders—those who regard legal expenses as a nuisance—may be familiar with the “black swan.”4 Aristotle considered the “black swan” impossible because he had never heard of one. He couldn’t fathom it, but exist they do. So, too, with certain case outcomes, especially in unfamiliar jurisdictions.
In one case, the plaintiff’s demand for billions seemed absurd. Pretrial analyses predicted a verdict of a couple million tops. But the jury awarded the plaintiff—a former hedge-fund manager claiming brain injuries—nine figures in compensatory damages and was raring to award punitives. That swan seemed mythical until it littered zeroes all over trial counsel. Luckily, we were there throughout the trial. We had already sharpened our tusks for appeal. We had leverage for settlement.
So think of appellate counsel as issue insurance. You need it for the black swans, when “We’re nearly certain to win” gives way to “Do we have any issues for appeal?” You need it if you lose the appeal and stakeholders start asking who handled the appeal and how many appeals they had done before. And you can draw on it at any time along the way: credible appellate issues beget trial victories and favorable settlements.
Who is your ideal appellate counsel?
- Independent. Good appellate counsel remain independent from the day-to-day of discovery and trial prep. They collaborate—rather than fight—with trial counsel on matters of trial strategy. But they aren’t afraid to guide that strategy, suggest issues, or push for objections.
- Reputable. They are known in the jurisdiction, not just to the appellate courts, but to the trial courts. They signal to the trial judge that adverse rulings may get her reversed, but favorable ones will be protected.
- Fluent. They know local procedure cold. They will craft and argue your jury instructions with an eye toward winning both the trial and the appeal.
- Precise. They know how and when to win—and lose—issues in the trial court to create your appeal while denying one to your opponents.
Consider your stakeholders. If the worst happens—an adverse judgment is affirmed or a favorable one reversed—will they question your decision to hire or not hire these (or any) appellate lawyers? How you feel about that swan might just nudge you toward that tree stump so you, too, can get to sharpening.
Published November 22, 2024.
