Although most lawsuits are resolved at the trial court level, many proceed to judgment and then appeal. In addition, our clients sometimes file petitions for extraordinary writs in the appellate courts to challenge orders that are not immediately appealable while the case is still pending in the trial court. Some cases proceed to a second level of review at the Supreme Court level. Therefore, appellate expertise is crucial during litigation. The stakes are high. When an appellate court publishes a decision, it sets a precedent. It makes law for litigants, lawyers and trial court judges. An appellate decision also becomes “law of the case,” governing further proceedings between the litigants.
Lewis Brisbois provides nationwide appellate expertise for its clients through its Appellate Practice Group. Our appellate specialists practice in federal and state courts coast-to-coast, including the Supreme Court of the United States.
Lewis Brisbois' Appellate Practice Group
Our Appellate Practice Group comprises a nationwide team of 54 appellate attorneys. We have experienced and accomplished appellate attorneys practicing in all of our major markets who are familiar with local appellate court customs and procedures. In California, for example, with at least one appellate attorney in six of our eight California offices, the Appellate Practice Group has a presence in all six appellate districts. Our appellate specialists have generated well over 400 published appellate opinions, as well as thousands of unpublished decisions. Five of these attorneys, Caroline Chan, Jeffry A. Miller, Roy Weatherup, W. Eric Blumhardt, and Lann McIntyre are recognized and certified by the State Bar of California Board of Legal Specialization as Appellate Law Specialists. Additionally, Kathryn Ender is a Florida Board Certified Specialist in Appellate Practice, and Sean Higgins is a Texas Board Certified Specialist in Civil Appellate Law. Our appellate specialists have generated well over 400 published appellate opinions, as well as thousands of unpublished decisions. In 2018, the Appellate Practice Group had 48 victories in 25 different appellate courts in 11 states. Few full service law firms in the State of California have as many certified appellate specialists or as large an Appellate Practice Group.
Why Do You Need An Appellate Specialist?
Appellate advocacy is a specialty. It requires special skills in areas such as writing effective briefs, analyzing and framing the factual and legal issues in light of the appellate standard of review, legal research, and presentation of oral argument. Appellate specialists handle a wide variety of civil appeals and writ proceedings in many areas of the law important to our clients such as class action and mass tort, commercial litigation, construction, elder law, employment, healthcare, insurance coverage and bad faith, products liability, intellectual property, toxic torts/environmental litigation, and many others.
As recently noted by Justice Judith D. McConnell of California’s Fourth Appellate District, Division One, “trial court preparation and appellate work are not commensurate tasks... preparation of an appellate brief and record is far more complicated than merely ‘repackaging’ the trial court brief.” (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 620.) Rather, “appellate practice entails rigorous original work in its own right.” (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 410.)
Retaining an experienced appellate practitioner ensures that the factual and legal issues developed at trial will be properly adapted and presented to the appellate panel, with the appropriate focus on appellate review. An attorney who practices regularly in the appellate courts knows how to evaluate the record (the briefing and evidence presented in the lower court) in light of the applicable standard of review and other aspects of appellate process. Skilled appellate attorneys have also honed their oral argument style so that it is suited to the Courts of Appeal, and also know the appellate judges and their clerks, and vice versa.
Appellate courts expect this heightened level of practice and expertise from the attorneys who practice before them. (See e.g., Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1387-1388 [“We take this opportunity to advise appellate attorneys who use material from trial memoranda to take care in adapting the material to the altered focus of appellate review. Points that are irrelevant to the appeal should be omitted. Subsequent pertinent legal authorities should be addressed. Arguments should be tailored according to the applicable standard of appellate review”].)
Appellate counsel also brings a fresh perspective and an objective eye to the case to confidently advise you which arguments are likely to prevail, and which arguments should be left on the “cutting room floor.” Retaining appellate counsel signals to the opposition that you are serious about the appeal, and that the appellate work will be first rate. These can be important considerations if settlement is a possibility, particularly since many appellate courts now have their own independent appellate mediation programs. An experienced appellate attorney is usually more efficient than an attorney who does not regularly practice in the Courts of Appeal.
Retaining appellate counsel ensures that you will have the absolute best chance of success while your case moves through the appellate courts.
Our appellate specialists from the firm's Appellate Practice Group regularly consult with clients and trial counsel regarding interlocutory appellate remedies, most commonly writs, that are filed with the appellate court before proceedings in the trial court are completed. We are often retained to draft writ petitions and interlocutory appeals, and work closely with trial counsel to ensure a consistent approach to the case.
Where a case is approaching trial and during trial, our appellate specialists are available to consult with trial attorneys and other practice groups. Among the subjects of such consultation are jury instructions, in limine motions, expert voir dire, issues of law, and preservation of the record. We are available to monitor trials for our clients, and have done so in many significant, high exposure cases.
When there is an adverse judgment, our appellate specialists frequently consult on possible post-trial motions and prospective appeals, including providing our detailed analysis and recommendations regarding possible outcomes on appeal and the risk, benefit and expense of pursuing an appeal.
When considering an appeal, the attorneys of the Appellate Practice Group are always conscious of the potential that a case will create a precedent for our client and perhaps for an entire industry.