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Trending in the Right Direction

Appellate lawyers are being called to work on lawsuits earlier than ever these days. A decade ago, these specialists were being used at the trial stage and beyond to advise attorneys in the event of an appeal. Now, some high-caliber appellate attorneys are being called in on Day One of certain cases to serve as consulting counsel, before it’s even determined if there will be a trial.
This parallels the trend of fewer cases going to trial, and those that do, hinging on legal issues that are appealed, according to Theodore J. Boutros Jr, a partner with Gibson, Dunn & Crutcher LLP.
“Clients recognize that you need to have the strategy on the legal issues be seamless between the trial team and the appellate team and have them articulated at the inception,” said Boutros, adding that he’s seen more clients bring in appellate lawyers at the beginning of cases recently.
Appellate attorney Margaret M. Grignon, a partner with Reed Smith LLP, agrees that the use of appellate attorneys as consulting counsel is “trending in the right direction.”
“Appellate attorneys often have a different perspective than the trial attorneys and can provide valuable insight on strategy, settlement, dispositive motions, legal trends, possible pitfalls and record preservation,” Grignon said.
The types of cases where appellate attorneys are now being called as soon as a claim is filed include those with novel or complex legal issues and those where the stakes are high. Sometimes, these specialists are given free reign to hire the entire legal team, according to MC Sungaila, a partner with Haynes and Boone LLP.
“This has led to an expanded role for some appellate lawyers as ‘chief legal strategy counsel’ in significant cases—often in class or collective actions or cases involving emerging legal standards,” Sungaila said. “In this role, the appellate lawyer serves as a trusted advisor who directs the over-arching legal strategy in a case from the outset and often leads the selection of the overall litigation team.”
This was the case for Sungaila in Brunner v. Liautaud. In this case, she was brought in as chief legal strategist at the beginning of the case and used a prior Supreme Court victory of hers— Patterson v. Dominos Pizza—on behalf of one of the defendants. The precedent was a 2014 California Supreme Court decision in favor of Dominos on joint employer liability, which stated that a franchisor becomes potentially liable for the actions of its employees only if it maintained a general right of control over “relevant day-to-day aspects” of workplace behavior.
This joint employer topic is an emerging issue for franchises around the country. The Patterson decision and the legal analysis involved were instrumental in getting the wage-and-hour claim against one of the franchisor defendants in the Brunner case dismissed, Sungaila said. Citing Patterson, the district court agreed with the defendant (the franchise founder), that the presence of “comprehensive and meticulous” brand standards for franchisees could not, as a matter of law, make the defendant liable for alleged wage-and-hour violations.
As appellate law changes and evolves, appellate lawyers have their fingers on the pulse of what’s going on and can use this to their client’s advantage, Boutrous said.
“Like with class actions, there are a suite of issues you need to argue, even if the law is unsettled,” he said, explaining that these issues include whether a plaintiff can use statistical sampling to prove class-wide liability and damages, without regard to the defendants’ individual defense to each class member’s claim.
Appellate lawyers can typically home in on the key issues that will be the focal point of the case when they first review it. They take a long view of the case, looking to see what issues may come up on appeal if they win at trial or if their client loses and then appeals.
“It’s essential to start building the record on key legal issues right at the outset of the case, to pave the way for a successful appeal,” Boutrous said.
A recent case where this came into play was when Boutrous and his appellate team were hired from the get-go to craft the entire legal strategy for a case challenging the inequities in the state’s public school system. The lawsuit, filed on behalf of nine public school students and supported by Students Matter, an educational non-profit founded by Silicon Valley entrepreneur David F. Welch, essentially challenged five state educational statutes, including those that grant quick tenure to teachers and make it challenging to fire egregiously ineffective teachers.
“Dave came to us and our appellate team because he knew that whatever happened in the trial courts, the questions would involve California’s equal protection laws, and because the constitutional issues were at the heart of the case he needed to have an appellate team on the case right at the outset,” Boutrous said.
Boutrous and his team prevailed at trial and the case is currently under appeal. (Vegara v. California)
Steven J. Renick at Manning & Kass has the distinction of being a trend-setter in this area. Manning & Kass brought Renick, a seasoned appellate attorney, on board nearly two decades ago to start a law-and-motion department. The goal was to provide appellate-level advice and support to the firms’ litigators as they prepared their cases and took them to trial. Despite achieving that goal—the department has grown to 10 attorneys and now assists on most of the cases the firm handles—Renick said he doesn’t know of any other law firm that has made a similar, firm-wide commitment to this sort of consulting process.
“Obviously, I’m a great believer in the value of having an appellate/law-and-motion specialist involved as soon as a case comes in the door,” Renick said “And I’m pleased to see that more firms are recognizing that value, even if so far it is just on a case-by-case basis.”
In his 20 years of experience in this area, he has found that trial lawyers have a very different view than appellate lawyers, so working together early on has a complementary effect, he said.
“Not that one is wrong and the other is right, both are important,” he said. “(Trial lawyers) focus on getting evidence, the stuff they need to prove a case. Our job is to deal with the legal issues, making sure that the evidence gets in and what type of evidence needs to be in for various elements of the case. As they’re going along doing their thing, we’re doing our thing. And, hopefully, we all come together at the time of trial with all our ducks in a row.”

Deirdre Newman

Deirdre Newman is a seasoned journalist, having reported for multiple publications covering community news, legal issues and business.

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About the Author: Deirdre Newman is a seasoned journalist, having reported for multiple publications covering community news, legal issues and business.

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