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

November 10, 2017 / Writing and Speaking

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.


  • Chicago

    Illinois 60603

    10 South LaSalle Street

    Chicago, Illinois 60603

    T: 312.855.1010 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • New York

    New York 10005

    28 Liberty Street 39th Floor

    New York, New York 10005

    T: 212.805.3900 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Carl M. Perri

  • Mission Viejo

    California 92691

    27285 Las Ramblas

    Suite 200

    Mission Viejo, California 92691

    T: 949.260.3100 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Florham Park

    New Jersey 07932

    100 Campus Drive

    Florham Park, New Jersey 07932

    T: 973.410.4130 TF: 800.826.3505 F: 973.410.4169 Office Managing Partner: Carl M. Perri

  • Michigan City

    Indiana 46360

    200 Commerce Square

    Michigan City, Indiana 46360

    T: 219.262.6106 TF: 800.826.3505 F: 312.606.7777 Office Managing Partners: Paige M. Neel, Kimbley A. Kearney

  • Appleton

    Wisconsin 54914

    4650 W. Spencer Street

    Appleton, Wisconsin 54914

    T: 920.560.4658 TF: 800.826.3505 F: 920.968.4650 Office Managing Partner:

  • Stamford

    Connecticut 06902

    68 Southfield Avenue

    2 Stamford Landing Suite 100

    Stamford, Connecticut 06902

    T: 203.921.0303 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Matthew J. Van Dusen

  • Tampa

    Florida 33609

    4830 West Kennedy Boulevard, One Urban Center

    Suite 600

    Tampa, Florida 33609

    T: 813.509.2578 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • San Francisco

    California 94111

    100 Pine Street

    Suite 1250

    San Francisco, California 94111

    T: 415.287.2744 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Houston

    Texas 77019

    2929 Allen Parkway

    American General Center, Suite 200

    Houston, Texas 77019

    T: 346.229.4612 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Ramy P. Elmasri

  • Dallas

    Texas 75201

    325 N. Saint Paul Street

    Suite 3100

    Dallas, Texas 75201

    T: 469.942.8635 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Ramy P. Elmasri

  • Boca Raton

    Florida 33434

    7777 Glades Road

    Suite 405

    Boca Raton, Florida 33434

    T: 561.765.5305 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick