Hopefully I won’t ruffle too many feathers with the following pronouncement: appellate law practice is a distinctly different animal from trial or lower court practice and it requires specialized training or experience to do it well.

I know that many litigators advertise to their clients and the world that they can ably handle a writ or appeal. Some can. If you’ve handled appeals in your career, whether through budgetary or logistical necessity, and you’ve had success, perhaps you’ll prove me wrong. But, assuming your client is willing, assuming she can afford it, and assuming you can work effectively, efficiently and cooperatively with an appellate specialist, I want to suggest that your client’s odds of prevailing on appeal will be vastly improved by at least involving an appellate specialist whenever possible.

The remainder of this post proceeds from the premise that it is fiscally and logistically possible to involve an appellate lawyer. A lingering problem arises from the impossibility of knowing, at the outset of a dispute, whether it will result in an appeal and a specialist will ultimately get involved. Certainly some cases are unlikely ever to lead to an appeal; I’m thinking here of disputes which are destined by contract to be decided through binding arbitration. Other cases, by virtue of their issues or parties, are virtually guaranteed to see an appeal–or many; here I’m thinking of a case like Apple v. Samsung. There’s just too much at stake for either party to go gentle into that good night without first exhausting every avenue of appellate review.

I call this a “lingering problem,” but it’s really more of a dilemma. Specifically, what can a litigator do, when it’s unclear if an appellate court will ever be asked to disturb a trial court’s ruling, to improve her client’s chances of success if an appellate issue does later arise?

In answering this dilemma, I solicited input from a true expert. Ben Shatz is a partner at the Manatt firm in Los Angeles, a certified appellate specialist from the state of California, a fellow blogger, a prolific writer and, most importantly, a good guy. What follows is our list of five ways that lower court litigators can make it more likely, if their case ultimately requires appellate review, that their clients will gain the most from hiring an appellate specialist.

1. Involve an appellate lawyer sooner than later. You probably saw this coming, but it’s worth stating. If it is economically feasible, Ben suggests an appellate specialist should become involved early “to help review theories, address key motions, spot potential writ issues, pre-cog anticipated appellate issues, review jury instructions and verdict forms (which are fertile areas for appellate review), and help with post-trial motions (which often preview appellate issues).”

2. Preserve that record. Again, obvious. But in the heat of the battle, my focus as a trial lawyer is almost always on convincing the single robed judge before me, not a panel of appellate justices. Ben suggests that “appellate kibitzing can help make sure points are properly raised and not waived.” So don’t forget to kibitz. And try not to let an impatient trial court judge prevent you from saying all you need to say to make a good record; this sometimes takes fancy footwork, particularly if the judge senses you’re just making a record to use later in seeking to overturn his ruling. (See my earlier post on judges playing games with the record.)

3. Don’t waive notice. Ben reminds us that, “too often, after losing a motion (or anything), trial counsel will meekly waive notice. But formal written notice is very useful in figuring out what happened and when, later down the road. Also, written notice often is the trigger for writ review, so it’s good to have a clear starting date for calendaring.”

4. When in doubt go ahead and order a transcript. This is actually two separate points. First, if you’re in a state like California with a struggling judicial budget, be sure to make sure there’s going to be a court reporter taking down the proceedings at any hearing in which there is even the slightest chance a writ or other review may be sought. This requires both ordering and paying for a court reporter.

The second point comes from Ben: “if you just lost a motion and are thinking about a writ, order a transcript right then; take steps to get a written order; don’t waive notice; ask immediately for a stay (or extension to file a writ, if allowed by the relevant statute).” As you’re probably starting to understand, this fourth point requires you to think about the possibility of appellate review before you actually appear for the hearing. Remembering on the morning of the hearing that you needed to order a reporter will be probably be too late.

5. Maintain clean, organized files. Finally Ben reminds us that “It’s not useful if I’m given papers that are annotated by hand (and thus can’t be used in an appendix).” Remember, too, that your client is hiring an appellate specialist for his or her highly specialized knowledge and skills. These do not include conducting “discovery” through your file to find key documents or exhibits.

So keep these suggestions in mind, even when it’s not yet clear there’s going to be an appeal. And, if there is an appeal, think about calling Ben or another appellate specialist, to assist you in getting it done right.

Bloomberg TV interviewed Vel Hogan, the foreperson of the jury in the recent Apple v. Microsoft patent trial, which returned a $1 billion verdict in Apple’s favor.  Undoubtedly future jury consultants will anchor entire PhD theses on this trial.  I don’t pretend to have the education and experience to do any kind of in-depth analysis.  But a few interesting points can be quickly gleaned from the interview.

Takeaway Number 1: Vel is smart.  But not just intelligent or wise.  He possesses the kind of intelligence, training and knowledge necessary to grasp much, if not all, of the technically sophisticated evidence presented during a patent trial.  According to my crack internet research, Hogan is VP of Engineering for Multicast Laboratories.  He holds patents and has been a member of the Silicon Valley tech community for over 30 years.  I would think most patent lawyers would be heartened to know jurors of Vel’s intellect are out there, available to be impaneled (particularly if your trial is conducted in a venue rife with tech engineers).  He said in the interview that the jurors were “inundated” with evidence.  Someone less intelligent or uninterested in technology could easily have been overwhelmed by the evidence and, rather than considering and re-considering the evidence–a great deal of which was highly technical — reached a verdict instead based the cut of John Quinn’s suits or because they like Apple’s TV commercials.

On the other hand, for the reason I am about to discuss (in Takeaway Number 2), many trial lawyers might be fearful of a juror of Vel’s intellect in this kind of case.  Purely from the interview, it does not appear Vel had any bias going into the trial or deliberations.  He owns no Apple products; his wife has a Samsung phone, but it’s not a smart phone.  If he had any bias that he concealed during voir dire, but that he brought into the jury room, it could have been a problem.  Why?

Takeaway Number 2: Vel served as a torch-bearing guide to most of the other jurors.  I speculate that it took the other jurors no time at all to select Val as their foreperson.   They knew from voir dire that he was a techie.  They probably paid attention to his expressions and slightest comments throughout the trial.  If/when he took notes, they either wrote notes themselves or wondered what they had missed that was so important.  He said in the interview that they started deliberations with a question and answer session, trying to clear up confusion some of the jurors had about certain issues.  Vel was thus their teacher, and their trusted guide in a way that none of the lawyers or witnesses could have been.  I suspect this was particularly true because I read about (and Vel Hogan alluded to)  Judge Koh’s frustrations with the lawyers for both sides throughout the trial.  The judge’s scoldings likely eroded the jurors’ confidence in the lawyers to guide them through the trial.  Thus, as a knowledgeable, likeable, apparently objective teacher and guide, Vel Hogan’s ability to influence the outcome of the trial was enormous.

Takeaway Number 3: Vel took the legal questions home with him and continued to deliberate.  He alluded during the interview to an “Aha” moment he had one night during the deliberations.  Before that, at the outset of the deliberations, he thought the verdict would likely be in Samsung’s favor.  But there was a single point that he struggled with (whether the No. 460 patent was invalidated by prior art).  He said that, after he internally resolved that struggle and decided he could defend the patent if it had been his own, much of the remainder of the deliberations went smoothly.  I speculate (with extra emphasis on that word) that the deliberations thereafter went smoothly because Vel, as the torch-bearing guide and teacher, had made his decision.  All that remained was for Vel to explain his own reasoning to the others.

Takeaway Number 4;  The jurors worked in a systematic fashion to reach their conclusions.  Several comments during the interview suggested that the deliberations were indeed deliberate.  They addressed the “simplest things first.”  If they hit a bump in the road, it would not derail their progress.  Rather, they suspended judgment on that point and moved on, with the plan to re-address the bump in the road informed by the outcome of their other deliberations.  In this way, they navigated their way (with their torch-bearing guide) through a veritable morass of evidence and instructions.

The interview is worth watching.  If I’ve mis-paraphrased Vel’s comments, please let me know.  I struggled with embedding the code, so the best I can offer is a link: https://bloom.bg/OkRkhk.