When should I engage appellate counsel?

Appellate counsel is helpful at any stage of the case. An appeal is dependent upon a complete record. Most people think about appellate counsel after judgment is rendered, but these types of attorneys can assist in any hearings before governmental agencies in making sure an appropriate appellate record is raised.

Isn’t switching counsel expensive?

If you are a client thinking about the need for appellate counsel or an attorney thinking about engaging appellate counsel, you probably recognize that a lot has been invested in the current counsel knowing every aspect of the case. Appellate counsel recognizes this and will work with you to make sure the cost of “getting up to speed” isn’t a hindrance to work on your behalf. The cost of an appellate counsel has to align with the benefit they provide.

What is an appellate specialist?

For an attorney to call themselves an “appellate specialist,” they must be recognized as such by the Ohio State Bar Association. There are some fairly strict criteria: an attorney must devote more than 25% of their time to appellate practice, demonstrate substantial proficiency, obtain peer recommendations and take another exam. There are less than 30 appellate specialists in the state. Terry Posey is Porter Wright’s Certified Appellate Specialist and is certified by the Ohio State Bar Association as a Ohio Appellate Law Specialist.

Are there any timing concerns in an appeal?

It is critical to meet with an appellate counsel at the earliest possible opportunity. Many Ohio and federal deadlines relating to appeals are not subject to any extension, and an appeal can be lost if timely filings are not made. When in doubt, reach out.

Will an appellate counsel work with my current counsel?

Appellate counsel can handle the entire appeal, but if you are happy with your current counsel, they can work collaboratively to improve the potential outcome. They can assist in as much or as little of the appeal as needed to help.

In what types of cases is an appellate counsel used?

Appellate counsel apply their skills to any types of cases: traditional negligence cases, criminal cases, domestic relations, and other business and contractual disputes. Many people do not recognize that appellate counsel are useful when seeking a permit or to maintain a professional license in ensuring the record justifying the decision is present if an appeal is needed.

Why do attorneys engage an appellate counsel?

Lots of reasons, but most boil down to the simple fact that an appellate counsel has handled more appeals. As a result, the appellate counsel is quicker at recognizing procedural issues and identifying issues that will resonate with an appellate court. An appellate counsel has significant oral argument experience and is willing to perform it for you or advise on technique and preparation.

I’m an attorney thinking about retaining appellate counsel. When’s the right time to engage?

An appellate counsel provides more value the earlier they are retained, but can assist at any stage. At trial, they provide knowledge in positioning the record and the judgment to make sure all arguments are preserved. They can assist or handle in the technical requirements, brief writing, oral argument preparation and oral argument itself. They can assist in motions practice and evaluating further appeal.

If I introduce my client to an appellate counsel, won’t they try to take the relationship?

A good appellate counsel recognizes that they were referred a client for the benefit of their knowledge. They work hand-in-hand with the referring counsel to demonstrate that the right tool is being used for the right job (success on appeal). Taking clients is bad for future business.

Appellate counsel only handle appeals, right?

Nope. An appellate litigator needs to be an experienced trial court litigator. From pleadings, discovery, the evidentiary rules, dispositive motions and trial procedure, a good appellate counsel has a breadth of experience that informs strategy and decision-making after appeal.

Aren’t trial attorneys good appellate litigators?

Everyone with a law license can handle an appeal. But should they? Is a day-to-day trial court litigator familiar with the applicable rules, the judge’s expectations, the idiosyncrasies of that particular appellate district? Does a trial court litigator know all the ways to win that don’t require a full merits opinion?