ATF Webinar 6-7-2016 FINAL

The Appellate Attorney in the Pretrial Phase

Differing Perspectives of Trial and Appellate Attorneys• Trial Perspective • Appellate Perspective

Attributes of “Appellate Vision”• Record Focus• Preservation Focus• Standards Focus• Elements Focus• Harm Focus

Some Principal Areas of Assistance• Critical Motions• Thematic Double Check• “Interim Appellate Interventions”• Evidentiary Disputes

The Appellate Attorney in Motions Practice: Value Added• Assuring Proper Evidentiary Support• Issue Framing, especially in Summary Judgment

Motions• Proper Use of Burdens and Standards• Proper Use of Authority• Rapidly Evolving Issues

Thematic Double Check: Nobody Can Think of Everything

Assessing and Implementing Interim Appellate Strategies• Writs• Collateral Orders• Statutory Interlocutory Appeals• Agreed Appeals• Permissive Appeals

Evidentiary Disputes: Help When the Heat is On• Daubert and Daubert-proofing• Motions in Limine• Preparing Trial Briefs• Phrasing of offers and objections

Daily Trial Reports

• Real-time, objective evaluation of how trial is progressing

• Tracking potential issues for appeal

• Settlement valuation

The Appellate Lawyer at Trial and Afterwards

Preserving Your Opponent’s Errors and Preventing Your Own

• Objections to evidence and improper arguments

• Ensuring judge rules on all objections

• Tracking admission and exclusion of exhibits


Preserving Your Opponent’s Errors and Preventing Your Own (cont’d)

• Tracking evidentiary rulings

• Offers of proof

• Mistrial motions, curative instructions, limiting instructions

• Jury instructions and verdict form


Dealing With Surprises That Crop Up

• Researching, briefing and arguing unexpected motions, freeing trial counsel to focus on the trial

• Buffer between the judge and trial counsel


Ensuring a Complete Record

Where is the court reporter?

• side-bar and in-chambers discussions

• experts’ visual presentations

• videotaped deposition testimony

• juror questions


Ensuring a Complete Record (cont’d)

Reviewing daily transcripts

• completeness and accuracy

• identify points on which additional testimony is required


Post-Trial Proceedings

Integrity of the jury verdict

• polling the jury

• objecting to an inconsistent verdict form before the jury is discharged

• juror interviews for possible evidence of misconduct during deliberations


Post-Trial Proceedings (cont’d)

• Making and renewing the proper motions, possibly making an appeal unnecessary

• Identifying which arguments must be raised to be preserved for appeal

• Bolstering the record


Post-Trial Proceedings (cont’d)

• Appeal bond or other security

• Stay of execution pending appeal


The Big Picture• The Game Can be Lost in the First Inning• The Architect vs. the Engineer• An Academic on the Team

• The elements of the claim or the defense• The Rules• Giving the trial judge a comfort level• Or – Giving the Judge a Preview• Distance from the relationships – deflecting blame

• Judge• Jury

• Worrying about waiver

The Appellate Strategist• Jurisdictions where appellate lag time is

increasing• Skating to where the puck is going to be, not

where it has been•Monitoring cases in progress in the state and

federal courts• Seeing that the trial team is ready to take

advantage of new precedent

Making the Law When There is None•What to Do When the Law is Underdeveloped• Identifying the Test Case• Timing is Everything• Interlocutory Appeals• CAFA• Personal Jurisdiction• State vs. Federal

• Being aware of what the other side is doing

The Strategic Amicus Brief• Different Jurisdictions, different philosophies• Satisfying the standards• Educating the Court of Appeal on the realities of

the industry• Discussing the policy implications of the decision

the opponent is urging• Legislative history and policy• Staving off the “Thelma and Louise” Case

A Strategic Approach to Appellate Mediation•Persuading the Opponent that the

Appeal is a Gamble

•Navigating the Different Systems• The Ninth Circuit’s Program• California Court

Finding a Conflict Among the Districts/Circuits• Amicus Cases as insurance against an adverse result

from the trial court or on appeal• Picking an ideal District or Circuit to target• Balance an adverse result with a positive decision

from elsewhere, and ask the Supreme Court to resolve the conflict

PresentersKirk JenkinsPartner, Sedgwick [email protected] 312.849.1965

Agelo ReppasPartner, Sedgwick [email protected] 312.849.1963

Vance WittieCounsel, Sedgwick [email protected] 469.227.4615

http://www.appellatestrategist.com/

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ATF Webinar 6-7-2016 FINAL

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