Trial lawyering is tough. The work is demanding, confrontational, public, and indelible. It takes some chutzpah to do the job. There’s a lot at stake, especially in the eyes of the client. Any litigator who cares about the client is going to feel a tremendous weight on their shoulders. But there is a way to take some weight off, create a safety net, and mitigate risk: embed appellate counsel into the litigation team.

Nearly every case with enough at stake to warrant hiring a trial lawyer and going to trial also warrants retaining appellate counsel for an appeal. But too often, clients and trial lawyers fail to engage appellate counsel early enough in the case. They hurry appellate counsel in at the last minute — when the “cake is already baked” and all that’s left to do is the “icing and slicing” of the record to make it palatable for an appellate panel. We appellate attorneys, of course, love dissecting the record to find the best issues and present them in a compelling way to win an appeal; that is our mainstay. But is it really the best litigation strategy to drop the freshly baked record in appellate counsel’s lap and wish them luck on appeal?

Good litigation strategy is largely about evaluating and managing risk. When a case arrives in the appellate court, the client now faces a whole new set of risks, some of which must be managed in the trial court because after that, it is too late. Among the greatest of these are the risks that appellate judges will disfavor the client’s legal position or find the lower court record inadequate. Neither element can change much on appeal. After all, this is appellate review. Finding, framing, developing, and clarifying the best arguments on appeal greatly influences the outcome, but the record influences it even more so because it is the only material the appellate attorney has to work with. Managing appellate risk, therefore, must start well before the case arrives in the appellate court, not after the record and legal position are set.

Managing appellate risk requires a different mindset from trial lawyering. Appellate judges often have a different take from the trial court on the law, the procedures, or the record, which in part explains why the Michigan Court of Appeals grants appellate relief (at least partial reversal or vacatur) in one third of all cases it hears.¹ Appellate judges focus more on nuances in the law and less on nuances in the record, more on process and principles and less on equities, and more on the case’s jurisprudential impact and less on the outcome for the parties. It goes without saying that a seasoned appellate attorney — someone who has substantial experience with the appellate judges, knows their appellate procedures and principles of review, and has studied how they think — will be in the best position to manage that sort of risk. Failing to properly manage that risk can be far more costly than paying for appellate consultation early in the litigation.

Adding someone else to the team requires a certain degree of vulnerability, I know. It is natural to worry that egos might get in the way, which is not good for the client and adds to the trial lawyer’s stress. But as explained below, that risk can be managed in the same way — by developing the relationship with appellate counsel at the start of the case instead of surprising them with the record after it is made. Given that appellate attorneys offer a different but complementary set of risk-management and problem-solving tools, put those tools to good use as you build the case.

There are a variety of ways to involve or consult with appellate counsel depending on the client’s resources and trial counsel’s case-management needs.

Pre-complaint strategy consultant: Before the complaint or answer is filed, involve appellate counsel in a discussion about the case, the legal theories, the legal or procedural obstacles, and the strategies for achieving the client’s objectives. If the law is not on the client’s side, it is time to consider whether it can realistically be changed on appeal. If the case is unprecedented, the trial court is more likely to toss it before discovery even begins. An appeal could be just around the corner, and appellate counsel will be better prepared for it. This can be a short conversation or trial counsel can have appellate counsel vet the complaint or affirmative defenses. If the relationship with appellate counsel is new, this is a good time to size them up to see if they are good fit. If not, it is very safe to switch horses at this point.

Dispositive motion advisor/advocate: When the time for a dispositive motion or response comes, ask appellate counsel to provide strategic input, research certain tough issues, review or draft a brief outline, or even write the brief. If it has not happened already, this is a good time to discuss the overarching strategy for achieving the client’s objectives in the case. The prospect of an early appeal by either side from the judge’s ruling can inform the motion strategy. If you already involved appellate counsel pre-complaint, the discussion will be efficient as they are already familiar with the case. Here again, appellate counsel can be tested: are they a team player, supportive, constructive, helpful, adding value? You are not yet stuck with this person as a teammate.

Trial strategy consultant/trial teammate: Appellate counsel’s involvement at trial can range from being on call for timely strategic advice to serving as a second chair of sorts depending on appellate counsel’s skillset. Having appellate counsel provide strategic input at end-of-day strategy sessions can be helpful to bring key developments into focus for the whole team, prepare for the next day, and tweak the trial strategy, if necessary, to keep it aligned with the appellate strategy and manage risk. Prior to trial, discuss with appellate counsel how you can best leverage their skills and time during trial given the client’s budget.

Monitoring for and preserving appealable issues: Trial counsel has more than enough to think about without having to track appealable issues and ensure the record is adequate to preserve them for appeal. But it is an essential task, one which should include making sure critical off-record discussions are timely stated on the record and ensuring an adequate proffer of excluded evidence. The client is better served if trial counsel stays focused on winning the case at trial rather than worrying what happens if the client loses. Assign an appellate attorney who is removed from the fray to worry about this. This will take a huge load off trial counsel’s shoulders and mitigate the risk of oversights.

Assisting with jury instructions and verdict forms: Well-written and precise instructions can be critical not only to the outcome of the trial but also to success on appeal. These instructions are where the law intersects with the evidence and the jury. Involving appellate counsel in the preparation and negotiation of those instructions can be a good way to ensure the appellate strategy marries well with the trial strategy and avoid regrets after the jury renders its verdict. Often, the model instructions fall short and need to be revised or supplemented. Appellate attorneys are good at wordsmithing and should be adept at aligning the instructions with the law and eliminating dangerous ambiguities.

Handling one-off motions or objections: In complex litigation, bringing appellate counsel in to argue a complicated or time-consuming motion can be a practical way to lighten trial counsel’s load and preserve an issue for appeal at the same time. In an emotionally sensitive case, having appellate counsel play the role of bad cop by bringing unpopular motions or objections necessary to preserve the record can help trial counsel maintain a good rapport with the judge or jury deciding the case.

Assisting with directed-verdict and post-trial motions: Covering the bases in dispositive motions during and after trial can be critical to success on appeal. The briefing for typical post-trial motions is a precursor to the appellate briefing because it is usually focused on applying the law to the record already made. There is no better way to get appellate counsel involved at the trial level. This task will be a lot more difficult, however, for an appellate counsel not yet familiar with the case, which is why it is better to involve appellate counsel early and often.

Strategic advisor, law maven, brief writer, jury instruction nitpicker, critical motions advocate, record preserver, motion maker — these are all roles well-suited to appellate counsel and roles they can serve without disrupting an entrenched trial team’s dynamic. Having appellate counsel serve in some or all of these roles provides the client better risk management and some appellate insurance of sorts. Additionally, appellate counsel will be better prepared, more knowledgeable, and more efficient when it comes time for the appeal. This engagement also provides trial counsel with a trusted advisor or teammate who will watch their back and relieve pressure at trial, leaving trial counsel with more time and energy to focus on winning.

It is tempting for trial counsel to do it all. After all, who can they trust more than themselves? But we litigators — trial attorneys and appellate attorneys alike — are human; we are not superheroes who can do everything and do it all well at the same time.

There’s an iconic scene in the 1978 movie “Superman” where the Man of Steel catches Lois Lane in midair as she falls from a helicopter hanging off the side of the Daily Planet skyscraper.

“Easy, miss, I’ve got you,” he says.

“You’ve got me?” Lois asks. “Who’s got you?”²

That’s the question every trial counsel and their client should be asking before they start litigation. Who’s watching trial counsel’s back, lifting them up, giving them the support they need to do what they do best? With appellate counsel on the team, there is a great answer.