Although required by rule to address
appellate jurisdiction, the statement of the
case often fails to do so. What is, and is
not, appealable is not always clear. Appeals
frequently are dismissed for lack of an
appealable order, an out-of-time appeal
or, until recent amendments, an uncured
premature appeal that became a nullity.
Appealing from a non-appealable order or
where the court lacks appellate jurisdiction
will, at a minimum, result in delay and a
disappointed client (if not worse). To avoid
such unfortunate results, determine early
on whether the court has jurisdiction to
consider the appeal. Then state, in a sen-
tence with supporting authority, how the
court has jurisdiction over the appeal.
Factual Details
Should Be Essential
The statement of facts is where a party can
explain what happened (with proper citation to the record, of course) and set the
table for the legal arguments that follow. A
good statement of facts paints a picture of
Focus on Appellate Law
Should I Hire Appellate
Lawyers as
Part of My
Trial Team?
BY PAUL G. ULRICH
network of factual, legal and procedural decision points. Working with trial
counsel, they then can help design
and pursue 3-D litigation strategies,
including proactive motion practice,
to establish the decision points proving
clients’ claims or defenses. Those
strategies are ongoing, creative, cooperative processes, changing as the litigation proceeds.
When To Hire. Appellate lawyers should
be added as trial team members for any
significant possible litigation as soon as it
develops, even though clients and trial
counsel initially expect it might settle.
They also can be consulted on smaller
matters as required.
Settlements. Most cases settle based on
the parties’ hopes and fears if they are tried
or appealed. Those evaluations necessarily
include how factual, legal and procedural
issues have been or might be argued
he short answer is “Yes, in appropriate
cases.” Doing so can lead to better-quality
representation, cost savings and improved
results. Corporate counsel and insurers are
increasingly hiring appellate lawyers to
help handle their clients’ trial court litiga-
tion. Trial counsel also can suggest such
engagements to their clients.
Appellate lawyers have distinct skills.
For example, they:
• Can identify, research, write and argue
legal and procedural issues, both to
win in the trial court and make a bet-
ter record for appeal. Many trial firms
don’t have in-house appellate lawyers
available.
• Can provide suggestions for better
positioning cases based on legal and
procedural issues, not just the facts,
then winning or settling them favorably on that basis.
• See litigation as a three-dimensional
T
the case, provides a feel for what happened
leading up to the appeal and highlights
what was done correctly or incorrectly.
Typically, I spend a great deal of time read-
ing the statement of facts. In doing so, I
have found that “less is more.”
The statement of facts should be limited
to information relevant to the issues pre-
sented for review, meaning details included
(dates, places, names, etc.) should be essen-
tial or they should be left out. If it is impor-
tant that something happened on a specific
date, list the date. Or if intervals are impor-
