2017 DRI Annual Meeting: Appellate Advocacy Committee CLE Panel Presentation Highlights

From left: Melinda S. Kollross, Paul V. Esposito, Hon. Rita B. Garman, Michael W. Rathsack

On October 4, 2017, the Appellate Advocacy Committee presented “Perspectives on the Appellate Practitioner’s Role at Trial and on Appeal: A View from the Plaintiff, the Defense, and the Court.”  Clausen Miller Appellate Practice Group Chair Melinda Kollross was honored to moderate the panel discussion, which featured Mike Rathsack, the most prominent Illinois plaintiffs’ appellate attorney, defense attorney Paul Esposito, one of the most frequently retained trial monitoring and appellate practitioners, and sitting Illinois Supreme Court Justice Rita Garman.  The panelists analyzed the value of retaining an appellate specialist at trial and on appeal.

After uniformly recognizing the current trend towards increased use of appellate practitioners in both the trial and appellate courts, the panelists focused on specific ways in which clients can benefit from employing the services of an appellate practitioner at the trial court level and in prosecuting or defending an appeal.

Mike and Paul described how they are routinely called upon to assist trial counsel with pre-trial proceedings, including briefing motions to dismiss and for summary judgment.  At trial, they not only function as the client’s eyes and ears by providing daily trial reports objectively assessing “how the case is going”, but also actively assist the trial team by preparing motions in limine, consulting on jury selection, researching/briefing evidentiary issues, drafting jury instructions and motions for directed verdict, and generally ensuring that error is preserved for appellate review by making sure that a complete record exists—including renewed objections and offers of proof as needed in a given jurisdiction.  This team approach allows the trial attorney to focus on openings/closings, examination of witnesses, and overall trial strategy while the appellate practitioner researches, writes and documents error, thereby maximizing the chance of obtaining a successful result at trial while simultaneously creating the strongest record on appeal.   Justice Garman noted that waiver is a common issue which the proactive use of appellate counsel at trial can help avoid.

The discussion then moved on to appeals.  Melinda began by asking “why retain an appellate practitioner to handle the appeal, especially if trial counsel won below?”  To the delight of the other panelists and the Moderator, Justice Garman confirmed that as a general rule, appellate practitioners write better appellate briefs and present better oral arguments.  She explained that in her experience, appellate practitioners are more likely to present succinct, focused briefs with compelling legal argument while avoiding redundancy and other problems.  Justice Garman also noted the tendency of many trial attorneys to make a jury-type closing argument before the appellate tribunal—rather than tailoring their argument to the appellate arena, where the judges are concerned with the legal issues presented, the applicable standard of review, and the precedential impact of the opinion they render.  Mike and Paul likewise confirmed their preference for facing an appellate practitioner (sometimes each other) rather than trial counsel when prosecuting or defending an appeal.

Audience members were encouraged to ask questions throughout the panel discussion, increasing its instructional value for all participants.