When Do Defendants Retain Appellate Counsel?
Hint: It May Be Sooner Than You Think.
I was recently retained to appeal an unfortunate grant of summary judgment in a catastrophic injury case. I recognized the defendant’s appellate counsel from one of the state’s top defense appellate firms. What impressed me, however, was how early appellate counsel became involved in the case behind the scenes. Although counsel didn’t formally associate into the case until defendant filed its reply supporting summary judgment, he had been shaping the direction of the case since defendant’s answer to the second amended complaint. (I happened upon this fact from a declaration of a City Archivist accompanying defense counsel’s motion for judicial notice).
Why devote the resources so early in the case? With appellate counsel’s assistance, defense counsel had the foresight to predict that the key dispute in the case is the legal question of duty, and specifically the interpretation and application of a City Ordinance.
By entering the case behind the scenes at the beginning of the case, appellate counsel helped trial counsel shape discovery inquiries to build its legal argument in defendant’s favor. By summary judgment the legal issues had been fully developed and crafted over the entire preceding year and defendant’s evidence appeared to fit naturally into its theory of duty. On appeal, the court will decide the issue anew, but will rely on a record that was carefully curated by defense counsel.
Early Bird Gets the Worm
Where a case involves a sympathetic plaintiff with high potential damages, rest assured that opposing counsel will do everything possible to avoid submitting the case to a jury, including picking the brains of legal specialists as well as medical experts, engineering experts, accident reconstructionists, etc., to transform the case into a dispute of law rather than facts.
By retaining appellate counsel early in the case, savvy defense counsel plays the long game. Let’s make sure they’re not the only one doing so.