By Charlie Ingrassia
An important aspect of appellate advocacy is providing trial counsel with proactive advice. Doing so can make a litigation team more effective and, ultimately, more successful. On January 30, 2014, the Association sponsored a brown bag luncheon at Baker & McKenzie LLP in Chicago, which featured a distinguished panel of experienced appellate practitioners sharing their insights on how appellate lawyers can provide advice to trial attorneys.
Michael A. Pollard, past Association president and partner at Baker & McKenzie LLP, began the panel discussion by offering an oversight on how appellate practitioners can advise trial attorneys during the course of litigation. Pollard emphasized that appellate practitioners were in a unique position to offer "immediate proactive advice" and should strive to provide trial counsel with flexible options. Pollard encouraged appellate practitioners to think of themselves as an "appellate resource" that could be a valuable asset to a litigation team.
Thereafter, the panel covered a broad range of substantive topics about which trial attorneys were likely to seek counsel. ALA Treasurer Joanne R. Driscoll of Forde Law Offices LLP, discussed evidentiary issues. Driscoll emphasized that, when a party seeks to introduce evidence which the trial court excludes, the party must make an offer of proof to preserve that evidence. If, however, a party seeks to exclude testimonial evidence that is allowed, the party should object and move to strike that testimony as soon as possible. Driscoll further discussed Rule 304(a) (eff. Feb. 26, 2010). Driscoll noted that, in an action involving multiple parties or claims, a final judgment as to one party or claim is not immediately appealable absent a Rule 304(a) finding.
Association past president Karen Kies DeGrand of Donohue Brown Mathewson & Smyth LLC focused on jury instructions. DeGrand advised the audience to urge trial counsel to consider a client's big-picture interests when asking for a specific instruction, cautioning "be careful what you ask for." DeGrand emphasized the importance of reminding trial counsel to create a clear record during a jury instructions conference and to specifically refer to each instruction by name. DeGrand also discussed various issues related to post trial motions. Pollard addressed appeal bonds and stays, and discussed the significant distinctions between federal law and state law.
The ALA thanks Baker & McKenzie for its generous hospitality in hosting the brown bag luncheon and the panel members for their thoughtful comments.
DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.