Few law firms of our size have the depth and breadth of appellate skills and experience that we offer our clients. Zuber Lawler’s appellate practice is befittingly multifaceted to mirror the panoply of emergent and established industries from which our clients hail, the often novel and complex legal issues confronting them, and the multitude of circumstances in which they find themselves. With a deep reservoir of experience in commercial, public, and criminal law, we are adept at serving as appellate counsel in the traditional sense—i.e., after the case has concluded in the trial court. With even greater frequency, however, our appellate team is engaged well before trial court proceedings have concluded—indeed sometimes before the lawsuit is commenced. Language is our currency. And litigation strategy is our forte. Our appellate lawyers have spent their careers melding the two—crafting custom briefs and motions and skillfully presenting oral argument in state and federal courthouses throughout the nation.
Pre-Trial Strategic Collaboration
Experienced trial lawyers recognize the value of having seasoned appellate counsel review their cases—confidentially, objectively, and with a fresh pair of eyes. But they do not always know where to turn for such assistance. Our appellate lawyers excel at collaborating with litigators of the highest caliber both at our firm and at other law firms to refine and strengthen the themes and theories of the case as well as the underlying claims for relief and legal defenses. They have decades of experience formulating and implementing litigation strategy and counseling other trial and appellate lawyers regarding existing tactics, strategies, and approaches. This service is designed to optimize the client’s position in the case, permitting the star trial attorneys with whom we collaborate to shine even brighter.
Zuber Lawler is frequently engaged to take the lead in crafting forceful, often dispositive, trial court motions and responses. At the pre-trial stage, these include motions to dismiss, significant discovery motions, motions for summary judgment, Daubert motions, forum non-conveniens, and venue transfer motions, motions to stay trial court proceedings and compel arbitration, motions in limine, motions for reconsideration, and many others. Our lawyers will present oral argument on such motions, if that is the client’s desire, or defer to trial counsel to present oral argument.
Appeals and Special Actions
Sometimes the circumstances require an appellate court’s early examination of a pre-trial ruling. Trial court rulings on preliminary injunction motions or motions to dismiss for lack of subject matter or personal jurisdiction are examples. Our lawyers’ experience in pre-trial appellate work runs deep. Zuber Lawler frequently conducts the initial evaluation to determine whether an appeal or special action is allowed, and if so, whether it is advisable. Should the client determine to pursue the appeal or special action, our lawyers prepare impactful petitions and briefs in support of the desired relief and present oral argument on such initiatives. Our lawyers’ experience opposing pre-trial appellate initiatives is equally substantial.
Orders and Jury Instructions
Many trial courts require the submission of detailed joint interim and final pre-trial orders setting forth the parties’ respective legal claims and defenses as well as the legal and factual issues that remain in dispute. These documents can be a valuable tool for recasting legal and factual arguments in a way that improves the client’s position at trial and for preserving error. Our lawyers have significant experience both formulating and negotiating the language of final pretrial orders with opposing counsel. We also focus the preparation of jury instructions, which can often be dispositive of the outcome of the trial.
Embedded Appellate Counsel at Trial
Preservation of Error
Our appellate lawyers relieve trial counsel of the heavy burden of preserving error during the trial by attending court each day or on chosen days, by identifying errors in real-time, and by attempting to persuade the trial court to rectify those errors without need for appellate court intervention. The potential for trial court error exists throughout the trial—e.g., jury selection, presentation of evidence, settling of jury instructions, closing argument, and/or upon receipt of the verdict. Our lawyers’ participation allows trial counsel to focus on what they do best.
Trial Court Briefing and Oral Argument
Trial lawyers rarely have the time to prepare thorough written motions while in the midst of trial. Yet these motions are often of critical importance to the client. Because Zuber Lawler is on hand at the trial, our lawyers are uniquely positioned to prepare forceful motions, including motions and renewed motions for judgment as a matter of law, responses to such motions, and other bench memoranda, so that the trial team can focus on trying the case. If trial counsel wishes, we also will present oral argument to the court in connection with trial motions and jury instruction disputes.
Motions and Record Preservation
Our appellate team prides itself at finding avenues for preserving error and developing potential appellate arguments in post-trial motions, including renewed motions for judgment as a matter of law, motions for new trial, and motions to amend the judgment. We also work closely and collaboratively with trial counsel to make sure the appellate record includes all necessary rulings, trial exhibits, and transcripts.
Supersedeas Bonds and Stays
Zuber Lawler assists trial counsel with enforcing or superseding the judgment during the appeal. Our lawyers have significant experience formulating and presenting motions to stay enforcement of the judgment upon the posting of alternative security in lieu of a bond or upon the posting of a reduced bond.
Appellate Evaluation, Direct Appeals, and Special Actions
Zuber Lawler offers a full-service appellate legal team. Our lawyers frequently are engaged after the case has wound its way through the trial court to review the entire trial court record, the trial court’s rulings, and the final judgment. Our mission at this stage of the engagement is to identify legal errors, to evaluate the strengths and weaknesses of the arguments raised below, and to help trial counsel or their clients assess the wisdom of pursuing an appeal or defending the judgment on appeal.
Post-evaluation, our lawyers are exceedingly well-prepared to handle the full gamut of appellate court proceedings, including appeals of final judgments, appeals of preliminary injunctions and other interlocutory decrees, special actions (e.g., petitions for writs of certiorari and mandamus), certified questions, appellate motion practice, and the representation of amici curiae. While Zuber Lawler’s appellate team typically serves as lead appellate counsel in the case, there are reasons in select cases for others to serve in that role. When that is so, our lawyers provide sound advice and indispensable support as co-counsel while others take primary responsibility.
Moot Court Preparation and Oral Argument
Zuber Lawler conducts in-house moot courts before oral argument to anticipate questions, discuss the most effective answers, and receive feedback from a select panel of appellate lawyers and/or judges who read the briefs much as the appellate judges will.
Moot Court Coaching
Where Zuber Lawler is not lead appellate counsel, our lawyers are skilled at providing coaching and advice to others for an upcoming oral argument based on their experience as oral advocates and teachers of the art.
It is almost always advisable for the lawyer who wrote the brief to argue it before the appellate court. But, when there are reasons to depart from this wisdom, we are willing to step in to deliver effective oral argument on cases where we did not write the briefs.
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Robert A. Mandel