During “March Madness,” think about constructing your litigation teams

By Brad McCullough

The NCAA basketball tournament – more commonly referred to as “March Madness” – is upon us. It’s one of the year’s most beloved sporting events, replete with dramatic comebacks, stunning upsets, and marvelous individual performances delivered in the national spotlight and under intense pressure. Teams that achieve success during the tournament, and have a chance at enjoying that “one shining moment,” must be carefully constructed. They must strike the right balance. Those teams need shooters and passers, big players who thrive down low “in the paint,” quick players who attack on the perimeter, and both defensive specialists and offensive whizzes.

Similar care should be given when building a litigation team. A good team obviously needs at least one lawyer who possesses excellent trial skills. Someone who can cross-examine opposing witnesses, can deliver compelling jury arguments, and can develop a persuasive trial strategy.

But what about an appellate lawyer? Or, more precisely, a lawyer who focuses on legal issues that arise throughout the litigation? Some people might think that type of role is reserved only for “big” cases, with large trial teams and bulging budgets.

Not true. Any case that has more than one lawyer working on it can benefit from having a team member who is primarily, if not exclusively, dedicated to handling legal issues. That lawyer could come from the same firm as does trial counsel. Or trial counsel and the client might decide, for various reasons, to use a lawyer from a different firm.

Why construct your team that way? What attributes would an appellate or “legal-issues lawyer” bring to the team? Well, for one, he or she would bring to the team an analytical approach to viewing the case.

That lawyer would bring strong legal research and writing skills and could help develop a litigation strategy that boasts not just a powerful factual narrative, but also a convincing legal framework. Just as a case should be shaped in a way that will make it attractive to a jury, so too should it be handled in a way that will be make it attractive to an appellate panel. In many instances, that lawyer might adopt a more objective perspective on the case, with all its strengths and weaknesses, thereby refraining from what some people call “drinking the Kool-Aid.”

What things would that lawyer do for the team? In addition to the obvious pretrial tasks of briefing motions to dismiss or summary judgment, as well as oppositions to those motions, the lawyer could contribute crucial assistance during trial. The legal-issues lawyer could free up trial counsel and allow those lawyers to focus on trying the case.

As legal issues arise during trial, as they inevitably do, trial counsel could focus on preparing for the next day’s witnesses, while the legal-issues lawyer could deal with those newly arisen legal issues. The lawyer could write motions in limine and responses to such motions. This lawyer could also help trial counsel with additional evidentiary issues that surface during trial. The lawyer could draft pretrial memoranda and bench briefs. Preparation of motions for judgment (or oppositions to those motions), jury instructions, and verdict sheets would also be prime jobs for the legal-issues lawyer to undertake.

Preserving issues for later appellate review is a crucial component of the legal-issues lawyer’s responsibility. Having a basket filled with allegedly erroneous rulings – such as faulty jury instructions, the erroneous admission or exclusion of evidence, or the failure to enter judgment as a matter of law – is of no help if those issues have not been preserved for appellate review. After the case goes to the jury, the legal-issues lawyer can help deal with questions from the jury and craft appropriate responses to those questions. Post-trial motions are yet another obvious job for this lawyer.

Just as a basketball team is best comprised of players who fill different roles and possess complementary skills, the same is true for a trial team. Adding a member who is responsible for addressing and handling legal issues is a step toward building a dream trial team – and one step toward enjoying the litigator’s equivalent of “one shining moment.”