26 Trial Lawyer • Winter 2024 Appellate Lawyer Continued from p 25 The trial court agreed with our position and denied the hospital’s motion. As expected, the hospital filed a petition for writ of mandamus. I drafted the response, which largely echoed our trial court brief but added additional points to respond to the new arguments the hospital had raised after that brief had been filed. The Supreme Court denied the hospital’s petition, thus cementing venue in Multnomah County for the case. While it would have been great from an institutional perspective (for all of our clients) if the Supreme Court had granted the petition and affirmed the trial court in a published opinion, that would have delayed justice for our client and also would have entailed the risk of the Supreme Court reversing the trial court as well. The trial court in the case might well have ruled the same way if the trial lawyer had handled the venue motion on their own. But adding an appellate lawyer to the mix not only put two minds at work on the issues, with symbiotic perspectives and resulting increased odds of success in the trial court, it also achieved efficiencies when the case went to the expected appellate stage. After all, I was already intimately familiar with the issues. Hiring an appellate lawyer I have a busy trial practice in complex litigation, in addition to my appellate work, so I do not do a lot of trial support work. But working on a case like the one against Columbia Memorial Hospital is deeply meaningful, as well as fun, especially when it involves an issue likely to go up on appeal. We have a lot of great appellate lawyers among our OTLA ranks. Most of them are members of the Amicus Committee. And most of them do a lot of trial support work in addition to the appellate work that often goes hand in hand with it. That trial-level work can come in handy when the defense just filed that big motion, or you’re coming up on trial, and you want some appellate perspective to make sure that you preserve your arguments for any appeal. You also want to make sure you make all the good arguments there are, and in the best way, to try to win now and in any appeal. You don’t have to wait until the briefing deadline, or trial, is upon you. Sometimes it helps to talk through a thorny issue with an appellate lawyer before you even file the complaint. But let’s say you handled the trial court proceedings yourself and now, whether you won or lost, the case is heading up on appeal. When should you reach out to the appellate lawyer? It’s best to do so right away. While it’s true that the actual appellate briefing doesn’t happen until long after judgment is entered, there are many steps before then that can and often enough go wrong. Those can include timely and proper service of the notice of appeal, post-judgment motions, supersedeas bonds and the appellate court mediation program. All of these steps can involve traps for the unwary or at least opportunities to put your case in the best light and strategic position for the rest of the appellate journey — issues for which guidance from an experienced appellate practitioner can be helpful. An appellate attorney can also help you decide whether to appeal. That “stranger to the case” perspective might help you realize it’s time to throw in the towel, or might spur you to take up a case you’d given up on. Likewise, an appellate lawyer can help you to evaluate any postjudgment settlement offers the defense might make. There are a variety of fee arrangements you can reach with your appellate lawyer. Which arrangement will work best for your situation depends on the strength of your case, the amount at stake in it, and the type and amount of work the appellate lawyer is to do. Sometimes the fee arrangement differs for the appellate lawyer’s trial support work compared to their appellate work. A case of wage theft A couple of years ago, I represented a former employee of a commercial flooring company in an appeal of a wage theft case. The plaintiff had worked for the company for years, selling commercial flooring and eventually becoming CEO. When the company got bought out by a private equity firm, they decided he was too expensive and fired him. In an effort to avoid paying him the approximately $2 million dollars in wages that it owed him, the company trumped up a claim that he had committed felony theft and breached his fidu- An appellate attorney can also help you decide whether to appeal.
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