The Appellate Attorney in the Pretrial Phase

Differing Perspectives of Trial and Appellate Attorneys Trial Perspective Appellate Perspective

Attributes of “Appellate Vision” Record Focus Preservation Focus Standards Focus Elements Focus Harm Focus

Some Principal Areas of Assistance Critical Motions Thematic Double Check “Interim Appellate Interventions” Evidentiary Disputes

The Appellate Attorney in Motions Practice: Value Added Assuring Proper Evidentiary Support Issue Framing, especially in Summary Judgment Motions Proper Use of Burdens and Standards Proper Use of Authority Rapidly Evolving Issues

Thematic Double Check: Nobody Can Think of Everything

Assessing and Implementing Interim Appellate Strategies Writs Collateral Orders Statutory Interlocutory Appeals Agreed Appeals Permissive Appeals

Evidentiary Disputes: Help When the Heat is On Daubert and Daubert-proofing Motions in Limine Preparing Trial Briefs Phrasing of offers and objections

The Appellate Lawyer at Trial and Afterwards Daily Trial Reports Real-time, objective evaluation of how trial is progressing Tracking potential issues for appeal Settlement valuation

Preserving Your Opponent’s Errors and Preventing Your Own The Appellate Lawyer at Trial and Afterwards Preserving Your Opponent’s Errors and Preventing Your Own Objections to evidence and improper arguments Ensuring judge rules on all objections Tracking admission and exclusion of exhibits

Preserving Your Opponent’s Errors and Preventing Your Own (cont’d) The Appellate Lawyer at Trial and Afterwards Preserving Your Opponent’s Errors and Preventing Your Own (cont’d) Tracking evidentiary rulings Offers of proof Mistrial motions, curative instructions, limiting instructions Jury instructions and verdict form

Dealing With Surprises That Crop Up The Appellate Lawyer at Trial and Afterwards Dealing With Surprises That Crop Up Researching, briefing and arguing unexpected motions, freeing trial counsel to focus on the trial Buffer between the judge and trial counsel

Ensuring a Complete Record The Appellate Lawyer at Trial and Afterwards Ensuring a Complete Record Where is the court reporter? side-bar and in-chambers discussions experts’ visual presentations videotaped deposition testimony juror questions

Ensuring a Complete Record (cont’d) The Appellate Lawyer at Trial and Afterwards Ensuring a Complete Record (cont’d) Reviewing daily transcripts completeness and accuracy identify points on which additional testimony is required

Post-Trial Proceedings The Appellate Lawyer at Trial and Afterwards Post-Trial Proceedings Integrity of the jury verdict polling the jury objecting to an inconsistent verdict form before the jury is discharged juror interviews for possible evidence of misconduct during deliberations

Post-Trial Proceedings (cont’d) The Appellate Lawyer at Trial and Afterwards Post-Trial Proceedings (cont’d) Making and renewing the proper motions, possibly making an appeal unnecessary Identifying which arguments must be raised to be preserved for appeal Bolstering the record

Post-Trial Proceedings (cont’d) The Appellate Lawyer at Trial and Afterwards Post-Trial Proceedings (cont’d) Appeal bond or other security Stay of execution pending appeal

The Big Picture The Game Can be Lost in the First Inning The Architect vs. the Engineer An Academic on the Team The elements of the claim or the defense The Rules Giving the trial judge a comfort level Or – Giving the Judge a Preview Distance from the relationships – deflecting blame Judge Jury Worrying about waiver

The Appellate Strategist Jurisdictions where appellate lag time is increasing Skating to where the puck is going to be, not where it has been Monitoring cases in progress in the state and federal courts Seeing that the trial team is ready to take advantage of new precedent

Making the Law When There is None What to Do When the Law is Underdeveloped Identifying the Test Case Timing is Everything Interlocutory Appeals CAFA Personal Jurisdiction State vs. Federal Being aware of what the other side is doing

The Strategic Amicus Brief Different Jurisdictions, different philosophies Satisfying the standards Educating the Court of Appeal on the realities of the industry Discussing the policy implications of the decision the opponent is urging Legislative history and policy Staving off the “Thelma and Louise” Case

A Strategic Approach to Appellate Mediation Persuading the Opponent that the Appeal is a Gamble Navigating the Different Systems The Ninth Circuit’s Program California Court

Finding a Conflict Among the Districts/Circuits Amicus Cases as insurance against an adverse result from the trial court or on appeal Picking an ideal District or Circuit to target Balance an adverse result with a positive decision from elsewhere, and ask the Supreme Court to resolve the conflict

Presenters OUR BLOGS The Appellate Strategist Kirk Jenkins Partner, Sedgwick LLP kirk.jenkins@sedgwicklaw.com 312.849.1965 OUR BLOGS The Appellate Strategist http://www.appellatestrategist.com/ Agelo Reppas Partner, Sedgwick LLP agelo.reppas@sedgwicklaw.com 312.849.1963 California Supreme Court Review http://www.californiasupremecourtreview.com/ Illinois Supreme Court Review Vance Wittie Counsel, Sedgwick LLP vance.wittie@sedgwicklaw.com 469.227.4615 http://www.illinoissupremecourtreview.com/