The Wisdom And Efficiency Of Having Separate Appellate Counsel Prosecute And Defend Your Insurance Coverage Appeals

August 31, 2016 / Writing and Speaking

We wish to caution our friends in the industry that now is certainly no time to try to “pinch pennies” and forego the wisdom and efficiency of having separate appellate counsel prosecute and defend your insurance coverage appeals. The thinking that “why not just have trial coverage counsel” do the appeal is a misguided thought in our practice. Former Illinois Appellate Court Justice Robert Cook, in an article entitled “Should the Trial Lawyer Handle the Appeal?” put it this way:

Some lawyers tell me that clients want their trial lawyers to handle the appeals because they don’t want to spend the money to familiarize another lawyer with the case. [D]on’t the clients want to win? Cost controls which substantially reduce the chances of success are not cost effective.

The point is, you are not saving money by having trial counsel handle your appeal because you are decreasing the odds that you will be successful in the appeal.

Many scholars and judges have noted that trial attorneys who prosecute their own appeals have tunnel vision. Having handled the case themselves, they become convinced of the merits of their cause. In other words, they lose objectivity and become “married” to the arguments they developed and the way those arguments were presented in trial court briefing. Separate appellate counsel bring no such biases to the table.

Moreover, coverage appeals cannot be done “on the cheap” by slapping an appellate caption on trial court briefing. This was recognized by the California Court of Appeals in the case of In re: Shaban, 105 Cal. Rptr. 2d 863 (Cal. App. 2001), wherein the Appellate Court had these observations on appellate practice and brief writing:

[A]ppellate briefs receive greater judicial scrutiny than trial level points and authorities, because three judges (or maybe seven) will read them, not just one judge. The judges will also work under comparatively less time pressure, and will therefore be able to study the attorney’s “work product” more closely. They will also have more staff (there are fewer research attorneys per judge at the trial level) to help them identify errors in counsel’s reasoning, misstatements of law and miscitations of authority, and to do original research to uncover ideas and authorities that counsel may have missed, or decided not to bring to the court’s attention.

* * *

[A]ppellate practice entails rigorous original work in its own right. The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them into an appellate brief, is producing a substandard product. (105 Cal. Rptr. at 870-71)

In other words, according to the California Court of Appeals: “Appellate work is most assuredly not the recycling of trial level points and authorities.” (Id. at 870)

In Litigation magazine, Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit, described the differences and required skills and temperament between trial and appellate lawyers. Judge Silberman stated:

Effective presentations to a federal court of appeals, or to any appellate court, require a blend of talents not necessarily found in the typical trial lawyer. Appellate advocacy is, in short, a specialty all to itself.

Clausen Miller has long recognized what the scholars and judiciary have said about appellate practice—it is indeed a specialty all to itself. This is why Clausen Miller has long been a proponent of maintaining a separate Appellate Practice Group and its appellate attorneys routinely handle the firm’s coverage matters on appeal. Senior partners Melinda Kollross and Don Sampen have successfully handled dozens of insurance coverage appeals nationwide for our friends in the industry over the past two decades.

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