Trial Appellate Counsel (TAC) is traditionally viewed as having a limited, primarily passive role at trial, centered around error preservation in the event of an appeal. This presentation is designed to show that this traditional view vastly underutilizes TAC. Deployed properly, TAC can increase the odds of winning the trial, oftentimes dramatically.
B. Why should a client or trial lawyer use Trial Appellate Counsel?
Due to the advent of alternative dispute resolution and the expense involved, few cases make it to trial now, and those that do often involve close factual issues and high potential verdicts. The importance of trials is therefore magnified. Both sides likely have excellent trial attorneys. Presence of TAC provides a unique, complementary additional weapon that provides a winning advantage.
C. How does Trial Appellate Counsel convey advantage
Trial Appellate Counsel conveys advantage by substantially influencing every other participant in the trial. TAC frees your own trial counsel to focus on witnesses, evidence and arguments, while simultaneously distracting opposing trial counsel with legal issues, motions, the charge, etc. TAC becomes a colleague, educator and guide to the judge, ultimately becoming the judge’s resource on legal issues in the case. Witnesses and the jury are indirectly influenced, but influenced nonetheless—witnesses by what they are allowed to talk about, and the jury by the evidence that they are allowed to see and hear, and the jury charge they must answer. If the case is appealed, the court of appeals is influenced by TAC’s intimate knowledge of the trial and the record. Most importantly, the client is influenced by TAC’s invaluable “real time” objective assessment throughout the trial of how the case is coming in, the appellate issues, and the settlement value of the case.
D. What specifically does Trial Appellate Counsel do to help win the trial?
Trial Appellate Counsel handles numerous tasks in all phases of the litigation. During the pretrial phase, TAC handles pleadings, motions for summary judgment, motions to exclude experts, motions in limine, all the while educating the court about the issues as the motions are heard. During the trial, TAC handles trial briefs and motions, evidentiary issues, jury selection and challenges for cause, motions for directed verdict, the jury charge, while also keeping the client informed as to the progress of the case through daily reports and a rolling summary of appellate issues. Of course, TAC also ensures that the record is in the best possible shape for appeal in the event that an appeal occurs. In the post-trial phase, TAC can handle entry of judgment, motions for JNOV, motions for new trial, and of course the appeal itself.
E. When should Trial Appellate Counsel be brought into a case?
Ideally, TAC should be brought into a case about one month before pleading/discovery/dispositive motion deadlines, which gives ample time to assess the situation and prepare pretrial and trial strategy. Although not ideal, TAC can be added right before trial and still be effective. Trial appellate lawyers also make excellent monitoring counsel, and in that event they can be added right before trial in an observational and reporting role.
F. Where should Trial Appellate Counsel be during the trial?
Trial Appellate Counsel should be an active participant in the trial, present in the courtroom throughout, preferably at or just behind counsel table. Only by being there and participating can TAC provide the sort of influence over the other participants that is the true benefit of TAC.
G. Who can be effective Trial Appellate Counsel?
Effective Trial Appellate Counsel should be experienced, with a deep knowledge of evidence and procedure and the policy rationales behind the rules; able to spot issues; unfailingly honest; and a likeable “team player.” Thompson Coe has a number of appellate lawyers who are experienced in this role, with a proven track record of success.
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