Over on LinkedIn, Megan Wade, who writes “A Brief Review – A Connecticut Appellate Law Blog” and recently launched an appellate litigation practice in Connecticut, asked the question of at what stage of a case trial counsel should associate in appellate counsel. I thought I would answer this from the perspective of someone with a double digit number of both appeals and trials under his belt – and the answer is it depends. Now before many of you mutter “obviously” and stop reading, I mean more specifically that it depends on the case strategy and the interrelationship in that strategy of the trial and appellate phases.

If it’s a fact based case and the only likely appellate concerns that will arise at trial involve preserving for appeal evidentiary or other typical issues that arise “in the run of play” at trial, trial counsel should be capable of protecting those issues for appeal and appellate counsel can just be retained later, if and when the losing party appeals. But if there is a complex legal issue that will be central to the suit’s outcome that is unlikely to be fully resolved at trial and, barring settlement, almost certainly will be subject to appellate review, then that is a different situation. In that case, bringing in appellate counsel even before trial can be important, both for planning how to frame the issue at trial so that it can be best argued on appeal and to deal with any disruptions to that strategy that arise during the trial (after all, no trial ever really goes exactly as planned and the mark of a good trial team is their ability to adjust on the fly).

I will use a concrete example from my own practice to illustrate my point. I was defending a pierce the corporate veil case against a senior officer of a company, with the plaintiff relying on an open question of law in the jurisdiction we were in to make the claim. We believed that the proper resolution of that open question of law provided my client with a powerful defense and, if included in the jury instructions, should result in a jury verdict in our favor.

We also knew that we had no other defense, however, and that, therefore, if the trial court refused to include a jury instruction to that effect, we were certain to lose at trial. Given the circumstances, we deliberately tried the case in a manner directed at prevailing under what we believed should be the new rule of law, figuring that either the trial judge would agree to include it in the jury instructions and the jury would rule in our favor, or the trial judge would refuse to grant the instruction, we would lose at trial and then have to fight that issue on appeal (we also felt confident even before trial that, if the trial court refused to give that jury instruction, the appeals court would hold that the instruction should have been given and thus any verdict in favor of the plaintiff would be reversed).

End result in the case? The judge refused to include the requested jury instruction, the jury came back against my client after a half day of deliberations, and the appeals court agreed with us that it was reversible error not to give that instruction. The appeals court further held that a reasonable jury, on the evidence at trial, would have found for my client if the instruction had been granted and therefore entered judgment for my client.

That particular case required appellate planning and expertise long before trial, rather than just after trial. In a case like that, it makes sense to have appellate expertise on board earlier rather than later, whether that is because it is part of the skillset of the trial team or by bringing in an appellate specialist.

And that is why when to bring in appellate expertise depends – it is all about what is necessary to get the win and when that expertise will be needed under the specific circumstances and strategy at issue.