What Role Can Appellate Counsel Play Before the Appeal?
In many ways, referring to a lawyer with extensive experience practicing in appellate courts as an “appellate” lawyer is misleading. An appellate lawyer is practiced generally in legal research, writing and analysis and is skilled at approaching matters from a detached, academic perspective. These are skill sets that can bring value to all stages of litigation.
Not all litigation will benefit from the early, pre-appeal involvement of an “appellate” lawyer. But, there are cases which may benefit from the insight which appellate counsel may bring to the table long before an appeal. Here are some things to consider as to when a matter may benefit from an appellate lawyer’s input and perspective.
- Perhaps the most obvious consideration is one of record preservation. Issues, arguments, and objections in the trial court generally are waived on appeal if not properly preserved in the court below. Appellate counsel could assist with proper preservation. Early insight into building and preserving the record could save time and money later when it comes to actually preparing and submitting the record on appeal.
- Appellate counsel could assist at the pleadings stage in evaluating whether the law supports the claims made and what evidence might need to be developed for a later dispositive motion. This might include early identification and analysis of issues for potential interlocutory review.
- Appellate counsel might also be a benefit in the actual drafting and presentation of dispositive motions, such as a Motion to Dismiss or a Motion for Summary Judgment or with other complex motions likely to be at issue in any eventual appeal. If such a dispositive motion is successful, the matter is likely to be appealed, and the early involvement of appellate counsel may go a long way toward putting matters in the best position for an appellate court to affirm a favorable result.
- Instructional error is a part of many appeals. Appellate counsel may assist in drafting and arguing the proposed jury instructions and in making a clear record for later review. This may prove especially important a party tenders a non-approved or non-pattern instruction.
- Post-trial, appellate counsel may assist in strategy for and preparation of a Motion for New Trial or other post-trial motions to preserve trial court errors and best posture the case for appeal. This is also, in most instances, the last chance to make sure the record below is complete and all arguments properly preserved.
Essentially, appellate counsel can assist at any stage of litigation – long before the notice of appeal is filed – with a focus on legal issues and with what can be a detached and objective legal analysis of the case.
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Baker Sterchi's Missouri Law Blog examines significant developments, trends and changes in Missouri law on a broad range of topics of interest to Missouri practitioners and attorneys and businesses with disputes subject to Missouri law. Learn more about the editor, David Eisenberg.
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