It may seem obvious that the time to contact an appellate attorney is when you want to file an appeal. But there are benefits to getting an appellate attorney involved even during earlier stages of your case. Here are six times it might make sense to seek an appellate attorney’s perspective.
1. You’re Drafting or Answering a Complaint Based on a Novel Legal Theory
It may seem like the pleading stage is too early to contact appellate counsel, but that is not always the case. If you are drafting or answering a complaint based on a novel legal theory, it can be helpful to involve appellate counsel early. An appellate attorney can help you consider the existing case law and analyze the likelihood that courts will extend it to apply to your case or the most likely of several possible ways the court might do so. This could impact how you choose to frame your complaint or, if you are the defendant, whether you choose to bring a motion to dismiss.
2. You’re Drafting or Responding to Dispositive Motions
It can also be useful to contact an appellate attorney when you are drafting or responding to a motion to dismiss or a motion for summary judgment. If such motions are granted, the filings submitted with the motion serve as the record for appeal, so it is important to make sure that all of the relevant evidence is included. Even if such motions are denied, they are often still important in a later appeal because they demonstrate whether a party made a particular argument to the trial court and preserved it for appeal. An appellate lawyer can help not only by making your motions more likely to succeed at the trial court, but also ensuring they have made the best possible record for a potential future appeal.
3. You Are Preparing For Trial
Getting ready for trial is often a busy time, but it is important to take a moment to consider whether contacting an appellate attorney should be added to your to-do list. If you suspect your trial might result in an appeal, getting an appellate attorney involved early can be very beneficial. The appellate attorney can help strategize motions in limine that should be brought, identify important facts that need to be developed for a clear record, and ensure proposed jury instructions and verdict forms have thoroughly preserved your position for appeal.
4. You Get an Unexpected Ruling at Trial
Sometimes it is not obvious that an appealable issue will arise until a judge makes an unexpected ruling at trial – perhaps admitting evidence that is clearly inadmissible or giving a jury instruction that is clearly contrary to established law. When this happens, it is a good idea to contact an appellate attorney right away. The appellate attorney can help ensure that you have made your objection clear for the record and have done everything necessary to preserve the issue for appeal.
5. You’re Filing Post-Trial Motions
If you are filing a post-trial motion, such as a motion for a new trial or a motion for judgment as a matter of law, you should contact an appellate attorney. The memoranda submitted with such motions are important because the appellate courts will look to them to see whether the parties have adequately preserved their arguments for appeal. In addition, it is important to contact an appellate attorney at this time to ensure that you have correctly calculated the deadlines for your post-trial motions and appeal.
6. The Opposing Party Appeals
Sometimes in the midst of celebrating your big trial victory, you receive the ultimate mood killer – a notice of appeal. If you have not already done so, it is definitely time to contact an appellate attorney. They can help make sure that your hard-fought trial victory sticks through appeal.
If you find yourself in any of these situations and want to speak to an appellate attorney, please contact Michelle Kuhl.