2. The Appellate Attorney in the Pretrial Phase

3. Differing Perspectives of Trial and Appellate Attorneys
Trial Perspective
Appellate Perspective

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

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

6. 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

7. Thematic Double Check: Nobody Can Think of Everything

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

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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. Presenters OUR BLOGS The Appellate Strategist
Kirk Jenkins Partner, Sedgwick LLP
OUR BLOGS
The Appellate Strategist
Agelo Reppas Partner, Sedgwick LLP
California Supreme Court Review
Illinois Supreme Court Review
Vance Wittie Counsel, Sedgwick LLP