Tuesday, December 3, 2019
On the Appellate Advocacy Blog, we typically focus on advocacy in appeals. This is the typical understanding of what an appellate attorney does - handle appeals. But in reality, an appellate attorney wears many different hats depending on the context of the representation.
It is important, from both an ethical and practical standpoint, to define the scope of each representation. Ethically, Rule 1.2(c) of the ABA Model Rules of Professional Conduct allows an attorney to “limit the scope of representation if … reasonable under the circumstances and the client gives informed consent.” The attorney must also communicate to the client “[t]he scope of the representation and the … fee and expenses ….” (Rule 1.5(b)).
Practically, an appellate attorney needs to define the scope of the representation so they can adequately meet their client's needs. Each case has different requirements, and if those requirements are not defined and communicated clearly, necessary work can either fall through the cracks or be unnecessarily duplicated.
In my practice, I try to have this scope discussion as early as possible, usually during conflicts checks. For new clients, I often start with setting out the different models under which I typically work as an appellate specialist. These are:
- “Embedded” Appellate Specialist. The appellate specialist works with the trial team from the beginning of the case. This includes drafting pleadings, pretrial motions, limines and charges, handling motion hearings, directed verdicts, charge conferences, and then any resulting appeal. In short, this model has the appellate specialist overseeing the legal aspects of a case from beginning to end. This model permits the trial team to focus on factual development and trial strategy, and the appellate specialist to focus on legal argument and error preservation. The model is typically used in complex matters, cases with large potential exposure, and cases that the parties intend to appeal no matter the result. Primary responsibility for the case usually shifts from trial counsel to appellate counsel after trial, although trial counsel may, in some cases, remain in a "first chair" position throughout.
- “Consulting” Appellate Specialist. The appellate specialist steps in primarily to observe and assist in a secondary capacity. Sometimes insurance underwriters or corporate clients will become concerned when a case seems to be “going south,” or when a case involving a significant potential verdict approaches trial. In those cases the appellate specialist is usually contacted shortly before trial, and serves as an additional briefing and research consultant for the trial team, while observing and sending daily reports to the client. This helps prepare the attorney for any necessary post-judgment work, because they become familiar with the case through the daily observations and reporting, and helps make sure any issues identified as potential appellate points are preserved for future appellate review. In other cases, the specialist may not be contacted until after the appeal or post-judgment motions are filed, and serves primarily to test, refine, and tighten arguments raised by trial counsel through the drafting process and in mooting the arguments prior to any hearings or oral argument.
- “Traditional” Appellate Specialist. The appellate specialist is brought in to handle the appeal post-trial. This traditional model has the appellate specialist review the same record that the appellate court will review, and present a new, objective view of the merits of the case and the likelihood of success of any appellate point. The specialist takes the record as they find it, and then helps with postjudgment motions and essentially takes over the case on appeal.
By presenting these models, I can then discuss with the client whether they need to use my services in line with one of those models or as something of a mix. That discussion then defines what work needs to be done, how that work should be prioritized, and who will bear responsibility for that work. I can then either include that specific scope in the letter of representation, or state a more general scope with some comfort in the knowledge that we have a set understanding of what that means.
In some cases, it may be necessary to go further and specifically state what role you will not be filling in a case. In cases involving insurance coverage, for instance, it is a good practice to specifically state that you are not coverage counsel, and that you are not choosing points on appeal based on their ultimate effect on coverage in the case, unless you are specifically instructed to do so by the client. In cases where there is already suspicion or acrimony between the client and trial counsel, a disclaimer that you are not going to advise on any malpractice theories may also be wise in order to preserve your focus on the appellate issues in the case.
However you ultimately define the scope of your engagement, the discussion with your client to set that scope will help more clearly define the client's needs and expectations in both of your minds. Only through that type of discussion can you be sure that those needs are met. Both you and the client will benefit.
(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)