Appellate attorneys specialize in appeal cases. Appellate practice requires specific knowledge and skills that go beyond those of trial attorneys. When faced with the prospect of an appeal, selecting the right appellate attorney can be critical for a successful outcome.
To start, look for an attorney with expertise in appellate litigation. While trial lawyers may have experience handling cases at the trial court level, appellate litigation requires a different level of expertise and knowledge.
It is imperative to understand that the timing of when to engage appellate counsel can vary. In some situations, in-house counsel can choose to retain appellate lawyers to serve with trial counsel while the matter is still in the trial court.
Doing so provides an opportunity for appellate counsel to become familiar with the case, identify potential justifications for appeal, and help with motions and issue preservation. Nonetheless, in most situations, appellate counsel is appointed only after a decision to appeal has been made.
It is important to pay attention to the context of the appeal, the complications involved, and the court in which the appeal will be filed. The type of appeal can influence your choice of attorney, as well as whether they have previous experience in a particular field of law or represent a specific industry. Additionally, strategic considerations may come into play, such as whether a big-name appellate attorney is necessary or if a skilled but less well-known attorney is the best option to handle the appeal.
When selecting appellate counsel, you must decide whether to choose an attorney from the same firm as trial counsel or from a different firm. There can be advantages to both approaches.
Selecting an appellate attorney from the trial counsel's firm can help to maintain strategic consistency and a strong working connection between trial and appellate lawyers. Nonetheless, selecting an appellate attorney from a different firm can provide a fresh perspective and prevent potential biases. The decision ultimately depends on the specific circumstances of the appeal case.
In-house counsel should conduct thorough due diligence when selecting appellate counsel. This includes meeting candidates in person, reviewing their qualifications and experience, and obtaining references.
It is important to review samples of the attorney's work, such as appellate briefs and recordings of oral arguments, to assess their skills and performance. Furthermore, in-house counsel should inquire about the candidate's process for handling appeals and their willingness to work as part of a team.
Before engaging appellate counsel, in-house counsel must identify any actual or potential conflicts of interest. It is crucial to ensure that prospective appellate counsel does not have any positional conflicts that would limit their ability to provide effective representation. It should also be determined whether trial counsel should play a role in the selection of appellate counsel and inform trial counsel of the decision.
Once appellate counsel has been selected, in-house counsel should set the tone for the engagement and define the working relationship among all attorneys involved. It is important to emphasize that the trial counsel was responsible for the trial phase, while the appellate counsel will lead the appeal.
Clear communication and cooperation between all attorneys are essential for a successful outcome. In-house counsel should also obtain an engagement letter that outlines the terms of the representation, including fees and expectations.
In the management of litigation, alternative fee arrangements (AFAs) are becoming more prevalent. AFAs are financial arrangements for legal services that go beyond the traditional billable hour.
Appellate proceedings lend themselves well to AFAs since they typically involve a limited set of tasks. Therefore, in-house counsel should also consider whether a flat fee arrangement would meet their needs for the appeal.
In cases where a company or organization wishes to file an amicus curiae brief in an appeal, many of the same deliberations apply. Writing skills and experience in drafting effective amicus briefs are crucial factors to consider when hiring amicus counsel. In-house counsel should weigh the candidate's expertise in this specific area.
