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What has happened in the trial court will, in almost every case, determine what happens on appeal. Thus, cases that justify having an experienced appellate advocate working on the appeal may also benefit significantly from having that same experienced appellate advocate involved in assisting with especially important trial court filings.

Motions for summary judgment, motions for class certification, motions to allow or prohibit expert testimony and post-trial motions are examples of the types of motions that might merit the involvement of appellate counsel so as to ensure that the motions are briefed with an eye toward having the strongest arguments available on appeal.

More and more attorneys and sophisticated clients are beginning to recognize the merits of this advice. As a result, I am frequently being contacted by lawyers and potential clients who desire to involve an appellate lawyer in their cases before the case has resulted in a verdict or other final decision.

It was not until last month, however, that one of my appellate clients asked me to attend an entire trial in my role as appellate counsel. Obviously, appellate lawyers who are unfamiliar with what happens at trial are far less effective than appellate lawyers who have had their share of trial court experience.

Over the course of my more than 15 years in private practice, I have attended from start to finish a number of trials on which I have worked. But, until last month, I had not attended a trial from start to finish since I began devoting my practice of law entirely to appellate work some four years ago.

The case that had me attending trial last month arrived in my office as a typical appellate matter. A federal district court in New Jersey had entered summary judgment in favor of the defendant, and against the plaintiff, in a breach of contract dispute between two corporations.

The plaintiff, a company based in Texas, decided to hire me to represent it on appeal. I briefed and argued the appeal to a three-judge panel of the 3rd U.S. Circuit Court of Appeals, which voted 2-1 to reinstate the plaintiff’s breach of contract claim for trial.

Although the corporate plaintiff was going to be represented at trial by the same attorney who originally filed the lawsuit on its behalf, the plaintiff asked me to attend the trial from start to finish in case the consequences of the 3rd Circuit’s ruling had to be argued and also to prepare me to handle any future appeal that might arise from the case.

In my many appellate-related writings, I have not previously strongly advocated in favor of having appellate counsel attend the trial merely to observe because it is far more expensive to the client than simply having the appellate lawyer read the trial transcript. This is because it takes far more time to travel to court and sit in court than it takes to sit in your office and read a transcript.

The specific trial I attended last month at the request of one of my clients was well-presented and well-argued by counsel for both parties. I had the pleasure of arguing on behalf of the plaintiff when the trial judge was considering the proposed jury instructions and proposed jury verdict sheet, and that argument produced some important changes in plaintiff’s favor to the instructions and the verdict sheet.

In helping plaintiff’s trial counsel prepare to give his closing argument and in observing the jury as it was listening to the court’s instructions on what law to apply, I was very much aware that this was a close case that the jury could resolve in favor of either party. The defendant was disputing whether a contract existed, whether the contract was breached, and whether plaintiff was entitled to recover any or all of the damages sought.

I am pleased to report that, after several hours of deliberations, the jury returned a unanimous verdict in favor of the plaintiff on the breach of contract claim, awarding to my client the full amount of damages the client was seeking. It was especially gratifying to have the claim whose reinstatement my appellate work achieved result in a resounding win at trial for my client.

Now, with the benefit of having seen and heard all of the evidence first-hand, I am able to be of immediate assistance at the post-judgment motion stage. And, the defendant has expressed intention to appeal once post-judgment motions are denied. Thus, another appeal is on the horizon, although it appears likely that my client will now have the advantage of being the appellee.

Whether a given case merits the attendance of an appellate advocate at trial obviously depends on the value of what is at stake and the client’s preference. But spending a week at trial has reinvigorated my admiration for the jury system and the trial judges and lawyers who make it work.

Howard J. Bashman operates an appellate litigation boutique in Willow Grove, Pa., and can be reached by telephone at 215-830-1458 and via e-mail at [email protected]. You can access his appellate Web log at http://howappealing.law.com.

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