The Summerville Firm reports that in 2017 it protected or recovered $86 million in verdicts and settlements, much of it through its work in the appeals courts.
The wins for the three-lawyer firm include a case at the U.S. Court of Appeals for the Eleventh Circuit in which the judges reversed a trial court that had eliminated a plaintiff’s $1 million win. The case set an important precedent over an insurer’s liability in a case where a company-owned car was driven by an uninsured employee.
In a case about a police shooting, the firm won a ruling that saved the claims, which had been dismissed when the plaintiffs’ original counsel had failed to file a brief in opposition to the defense motion to dismiss.
Among the successes for the firm, which added a fourth lawyer this year, were getting courts to agree to hear their clients’ cases and certiorari granted in an important case concerning litigation funding.
Here is our Q&A with firm leader Darren Summerville:
Lloyd Bell told the Daily Report that you “did an excellent job of keeping me out of trouble” during a trial in which your shared client was a $26 million verdict. What kind of trouble can a trial lawyer avoid when working with an appellate lawyer, and what happens if the trial lawyer—for reasons of winning the case at hand—needs to do what the appellate lawyer thinks is risky?
Trials are hard, and not just because they are grueling and take a physical toll. Having “embedded counsel,” as we are often referred to, serves multiple ends, all of them favorable. For one, it allows trial lawyers to focus on what they do best—roll out the evidence within a particular framework or in accordance with a particular message. Having appellate counsel involved in actually making the record, as opposed to trying to defend it retrospectively, is empirically quite valuable. That’s why most lawyers that engage us once come back over and over again. The trial counsel with the vision necessary to work up and try high-end cases simultaneously realize that having a resident law nerd on hand will ultimately be beneficial, so we have thankfully avoided many situations where there were out-on-a-limb, in-trial decisions.
In appellate practice, how important is knowing the tendencies of the judges who will decide the case? Put another way, does that matter, or will the law dictate how the court decides to rule?
Vitally important. The law dictates the outcome, yes. But each judge has their own approach to answering legal questions. What are their preferred tools of statutory interpretation? How do they define dicta? Stare decisis? When do they consider policy concerns, and which ones matter? Persuasive writing and argument is only half the equation. The best appellate advocates develop arguments that employ the judges’ own preferred tools of adjudication, helping the court to craft favorable opinions. This reality is one reason appellate expertise matters; trial attorneys—even excellent ones—cannot keep tabs on the Georgia appellate courts without living in the case law full-time. And knowing the tendencies of trial court judges is just as important for our appellate practice. When engaged as “embedded counsel” during the trial, it is helpful to understand the judge’s practice history and leanings when navigating through thorny or evolving legal issues such as apportionment.
You have some success in working with clients on cert grants. How has the cert practice changed with the expansion of the Supreme Court of Georgia from seven to nine justices, and from shifts in jurisdiction between it and the state Court of Appeals?
The rate of certiorari grants is certainly ticking up, an apparent indication of the Supreme Court’s signaled intent to become more of a “cert court.” One of the important factors that makes certiorari briefing distinct from merits briefing is a stark appreciation of what makes a particular appeal a good “vehicle” for ruling on issues of public gravity and concern. If the issue was squarely presented below and impacts a good number of Georgia courts, lawyers or citizens, then that’s a good start. Clear briefing that succinctly identifies the issues of public importance, often backed by ample use of prevalence statistics, is also a step in the right direction. As Justice [Keith] Blackwell put it recently, “It’s all about gravity.” And so that’s the message and argument.