Practice Areas & Industries: Kilpatrick Stockton LLP

Practice/Industry Group Overview

Kilpatrick Stockton already has significant appellate experience. In the past five years, Kilpatrick Stockton attorneys have appeared in all 13 federal circuit courts of appeals, as well as in the highest courts of 25 states. Since 1995, the firm has served as lead counsel on approximately 125 such appeals, as well as more than 200 appeals before intermediate state appellate courts. The firm also has an active practice before the Supreme Court of the United States, and has filed numerous petitions for certiorari, briefs in opposition to certiorari, and briefs amicus curiae in the Court. Many of the cases were, of course, appeals from decisions in which the firm was involved as trial counsel. Additionally, a substantial number were cases in which the firm had no lower court involvement, but was retained solely for the purpose of pursuing appellate relief or defending the result obtained in the court of first instance. About 60 firm lawyers previously were law clerks for federal or state judges.

Kilpatrick Stockton's Supreme Court and Appellate Practice Group augments and expands the firm's established litigation capability and formalizes the role and organization of our appellate lawyers. With the combination of our appellate and trial litigators, clients know that all of their litigation needs can be fully met by the firm, from the filing of a complaint to the presentation of oral argument in the Supreme Court. This is a firm-wide resource available for all KS lawyers and clients. Kilpatrick Stockton is now among the small group of leading law firms that can provide this important service.

Clients, law firms, and judges increasingly have recognized that appellate litigation is a specialized area of practice that requires its own set of skills and experience. As Judge Laurence H. Silberman of the D.C. Circuit has observed, "The skills needed for effective appellate advocacy are not always found - indeed, perhaps are rarely found - in good trial lawyers." In making a "plea for reliance on specialists for appellate advocacy," Judge Silberman explained:

"Appellate advocacy is, in short, a specialty all to itself. . . . Persuading juries takes different forensic and analytical skills than persuading appellate judges. . . . There may be some who think that the quality (in most cases, that means expense) of counsel [for an appeal] really does not matter that much. They are quite wrong. . . . [T]he boost given a case by a thoughtful, elegantly written brief and polished oral argument cannot be overstated."

Particularly in major cases, clients now frequently retain appellate counsel in the Supreme Court and courts of appeals.

Services Available

Among the specialized skills and experience offered by Kilpatrick Stockton's appellate lawyers are there:

• A fresh perspective and critical judgment

Detachment from the proceedings below can be a valuable characteristic for an appellate lawyer. An appeal is not an opportunity to re-try the case in a higher court. Selectivity and focus on the strongest legal arguments are crucial to effective appellate advocacy. Accordingly, appellate counsel should bring a fresh perspective to the case as it will be argued in the reviewing court and exercise critical judgment about the most effective way to present the case on appeal.

• Knowledge of appellate process, procedures, and strategy

A thorough knowledge of the appellate process, including appellate procedure and strategy, is a principal skill of the appellate practitioner. If law school teaches students to think as lawyers, then appellate practice teaches lawyers to think as appellate judges. It is crucial for appellate counsel to approach an appeal the way the appellate judge does: with a fresh eye and probing mind; without a pre-existing mastery of the subject area at issue; conscious of the established framework employed by appellate courts based on such considerations as the standard of review and the record developed and preserved below; and mindful of the role of the particular appellate court and the nature of appellate decision-making. The legal issues that will attract the attention of appellate judges, and the arguments that will persuade them, generally are quite different from those that were central in the trial court. Moreover, appellate lawyers can serve as interpreters or translators between the substantive specialists, who often converse in technical jargon and shorthand known only to other experts in the area, and the appellate judges, who usually are legal generalists and (compared to the trial judge) devote relatively limited time to the case.

• Familiarity with appellate courts and judges

In addition to their knowledge of the appellate process, appellate lawyers often have particular knowledge and insight into the appellate court and its judges. Such perspective is important to effective appellate advocacy.

• Strong persuasive written and oral advocacy

Sophisticated legal analysis and strong advocacy skills, in briefs and oral arguments, are the foundation for success on appeal. By contrast, arguments that are appropriate for and work with a jury are often ineffective in an appellate court.

Kilpatrick Stockton's appellate lawyers provide the full range of legal services in the Supreme Court and appellate courts. These include:

• Devising an effective Supreme Court or appellate strategy
• Drafting or opposing the petition for certiorari in the Supreme Court, and preparing the notice of appeal in cases in other appellate courts
• Critically analyzing the prospects for a stay pending appeal
• Compiling the record and appendix on appeal
• Identifying, selecting, and articulating the best issues for appeal
• Preparing the brief on the merits for a party
• Presenting oral argument
• Handling any rehearing proceedings
• Formulating and coordinating an amicus strategy in support of the party represented
• Representing amici curiae on appeal
• Discussing cases with appellate lawyers at the Department of Justice in which the government is or may be considering participating in the Supreme Court or court of appeals

In addition to handling cases on appeal, Kilpatrick Stockton's appellate lawyers can assist other attorneys (whether at the firm, other outside counsel, or in-house lawyers) in their appellate representation. For example, we can consult on appellate strategy and procedures, comment on or edit drafts of briefs, and conduct moot courts to prepare the lead lawyer for oral argument.

In appropriate circumstances, Kilpatrick Stockton's appellate lawyers also participate in cases that still are in the trial court. For instance, we become involved in post-trial or post-judgment proceedings to provide a smooth transition to any eventual appeal and to assure that the required procedures are followed to permit an appeal. Likewise, in cases where a significant legal issue is presented and where a later appeal may turn on that issue, we can assist on dispositive pre-trial motions, substantial motions during trial, or even critical jury instructions. Furthermore, by viewing the case from an appellate perspective, we can help to ensure that the issues for appeal are properly preserved and the best record made. For cases that are likely to be resolved by a higher court, it is important to involve appellate lawyers early in the process as integral members of the litigation team.

Finally, beyond individual cases, Kilpatrick Stockton's appellate attorneys can coordinate with the firm's other lawyers to provide assistance in a variety of ways. We generally keep apprised of significant decisions in appellate courts and can alert interested lawyers to recent opinions in designated practice areas. We also can follow trends or lines of cases in the appellate courts. Similarly, we can monitor major cases that are on appeal, especially those in the Supreme Court, and analyze legal decisions of major importance to the firm's clients.

The hallmark of Kilpatrick Stockton's Supreme Court and appellate litigation practice is teamwork and cooperation. We collaborate with our clients and among ourselves in analyzing issues, formulating strategies, and drafting briefs and preparing for oral arguments. We consult as may be appropriate with knowledgeable substantive experts at the firm in the area of law in which an appellate matter arises. We work closely with the firm's trial lawyers who handled the case below and are most familiar with the proceedings and the client. This combination of appellate skills, substantive knowledge, and experience in the trial court - all within one law firm - provides the best and most efficient and cost-effective representation for our clients.