By Kyle R. Kroll
Appellate practice is not a solitary pursuit; it is a team sport. That’s what I’ve learned in working alongside my mentor and colleague, Tom Boyd. Along with Marianne Short and the late, and much missed, David Herr, Tom recently published an update to Chapter 66, “Appeals,” in the treatise Successful Partnering Between Inside and Outside Counsel. This combined “meet my mentor” and “Three Tips” feature highlights select insights for successfully partnering with inside (in-house) counsel on appeals, based on Tom’s Chapter 66 update and his decades of experience. The common thread among each tip? Taking a team approach to appellate advocacy.
1. Involve Appellate Counsel Early, and Integrate Them into the Team.
Proactive is usually better than reactive. This is a common theme in Tom’s practice and throughout Chapter 66, which advises, “[m]any of the opportunities presented by appeals are unlikely to materialize if the case just grinds forward with no attention to appellate issues or practices.” Inside counsel play a crucially important role in selecting and integrating appellate counsel early in a case, and it is often wise to do so early in the pre-trial phases well before any potential appeal.
Tom and I have seen the benefit of appellate specialists proactively assisting trial counsel at the district court level. In one recent case, we were engaged to assist the trial team with an eye toward preserving issues for potential appeal. We helped draft and review pretrial submissions, such as motions in limine, Daubert motions, and jury instructions. Throughout the trial, we served as an objective sounding board for ways to preserve issues, and we collaborated with trial counsel on making the requisite offers of proof while minimizing friction with the court. This collaboration not only ensured the client’s interests were well-protected but also facilitated our later work as appellate counsel to take on post-trial motion practice and see the case through entry of judgment.
Integrating appellate counsel into the team, whether it be a trial team or the internal client team, adds dimension to the case throughout the litigation. To Tom, additional perspectives from the team are critical to informing the issues on appeal. Feedback from the team on briefing also ensures that nothing is overlooked. At the same time, appellate counsel can assist with defusing internal pressure to include elements in a brief that could be counterproductive to appellate presentation. For example, clients or members of the trial team may want to press arguments about which they feel strongly, but have little chance of success on appeal, or make personal attacks on their opponent. Appellant counsel can help convey why these distractions can create a poor impression with the Court if ultimately irrelevant to the issues on appeal. Involving appellate counsel also often leads to alternative ideas for presenting the client’s interests and arguments in an effective and productive way. Rigorous discussions of the essential issues will also lead to more effective briefing.
Finally, involving appellate counsel early in the process assists with evaluating whether an appeal will be advantageous. As Tom and his co-authors note,“[a]ppeals present an opportunity to retrieve the lost cause from the trash pile or to enshrine the victory as a permanent, final accomplishment.” An appeal can be the most effective way to maintain any remaining leverage the appellant may have. Appellees may wish to preserve their win or avoid a possible change in the law. Apart from the risk of reversal, there may be other reasons the prevailing party may be concerned by an appeal. For example, if the parties are litigating an active area of the law, there can be a risk of possible adverse precedential developments that may result from a merits decision in the appeal. These considerations show how important it is for inside counsel to engage appellate counsel early to discuss the array of options and evaluate risks in an appellate context.
2. Coordinate a Chorus of Amici Voices.
After the appeal begins, appellate counsel and inside counsel should work together to identify whether there are third parties who can offer useful perspectives to the Court as amici curiae. Examples include trade groups, nonprofits in the space, scholars, governmental bodies, and other industry participants. Most appellate courts tend to be fairly liberal in permitting briefing from amici, and Chapter 66 recognizes that, in recent years, “amicus curiae briefs are not only more common . . . but also more important.” Given their connections through the client, inside counsel are uniquely positioned to identify and influence potential amici to participate and coordinate their effective involvement with appellate counsel.
When working with Tom—both as counsel for amici, and in coordinating with amici—we have found that the most compelling amicus briefs are those that provide unique sources of empirical data of which the court can take judicial notice. One excellent example in Tom’s mind was an appeal involving the constitutionality of a state’s prohibition on same-sex marriage. A brief from the Social Workers of America provided compelling data showing that the gender of a child’s parents does not affect child development—what matters is that there are two parents, regardless of gender. This amicus brief advocated that children raised by two parents, rather than one parent, are better off by and large. We encourage inside counsel to identify amici based on their ability to provide helpful concrete data and information that might otherwise escape the Court’s attention on appeal.
In speaking with Tom about amici, he reflected that while amici may not have changed the result in some cases, there are cases in which he thought it would have been useful to have amici support to demonstrate that the client’s views and positions were shared by other participants in the industry. In those cases, it is impossible to know the difference amici could have made. But there is little doubt that when inside and appellate counsel collaborate on amici issues, the likelihood of helpful amici participation and the client’s success on appeal are increased.
3. Mock Arguments Prove the Adage: Two (or More) Minds Are Greater Than One.
After coordinating briefing with amici and trial/internal teams, the collaboration by in-house and outside appellate counsel should continue in the preparations for oral argument. (This is not to say that a mock oral argument necessarily cannot take place before briefing; Tom has heard from some practitioners that mocking oral argument can be helpful before briefing, as it may illuminate the salient issues and questions that should receive the most attention in the brief.) One of the most useful preparatory tools is a mock (or moot) oral argument with appellate counsel and the trial or client teams. Inside counsel should assemble the mock argument group of internal and external members and allocate resources necessary to conduct two to three mock arguments.
Tom has found that mock arguments are often a useful “focus-group” experience. Not only does a mock argument help the appellate lawyer prepare for likely questions and responses but also it helps identify what may be the greatest sticking points for the Court on appeal. It is usually also advantageous to involve a client’s senior management because the discussion with those on the ground often highlights the salient facts, as well as sets expectations among leadership of what will occur at the oral argument and the possible next steps. Through mock arguments, chances are there will be far fewer surprises for the appellate lawyer and the client at the actual oral argument.
These three insights emphasize the importance of a collaborative, team-based approach to appellate advocacy. Learning these takeaways through work with Tom has been a highlight of my career so far, and I am grateful for his mentorship. If you are seeking to learn more, I encourage you to reach out to appellate mentors in your network, as well as take a look at the many more insightful recommendations in Chapter 66 of Successful Partnering.
Kyle R. Kroll kkroll@winthrop.com
Kyle R. Kroll is an attorney at Winthrop & Weinstine, in Minneapolis, where he practices business litigation at both the trial and appellate levels. The views expressed in this article are those of the author alone, and not of any other person or organization.