Four misconceptions about appeals

As an appellate attorney, my business is understanding the business of trial attorneys. But I encounter recurring misunderstandings about appeals and appellate referrals. Here’s why those beliefs are mistaken.

Misconception 1: If I refer the appeal, I’ll lose the client

Trial lawyers sometimes think this because they misunderstand the business of an appellate practice. In a bustling appellate practice, the client for business purposes is the referring attorney.

Of course, the ethical and professional duties are owed to the actual client. But the client probably won’t have repeat appeals. The person with the repeat appeals is you—the litigator.

Besides, appellate specialists aren’t looking to steal anyone’s trial work. Most became appellate specialists to focus on appeals to the exclusion of trial litigation.

Misconception 2: If I refer the appeal, I’ll miss out on the appellate fun

There’s plenty of fun to go around. Every appellate lawyer appreciates help assembling the record. And we also want your insights on issues best suited for appeal.

Even when it comes to the briefing, I value trial counsel’s careful review of drafts. I want the facts to be impeccably accurate, and you’re the expert on those.

There’s also a chance to help with amicus coordination. Are there other groups that may care about your case? If so, help appellate counsel brainstorm and coordinate with potential amici.

And then there’s the fun part: moots. Most appellate attorneys moot a case before oral argument. I love having trial counsel on my moot panels. You know the weaknesses in your case. Being put through the ringer by trial counsel is invaluable.

Misconception 3: Appellate attorneys are just for the appeal itself

An appellate attorney can help before a notice of appeal is ever filed.

First, in complex cases, appellate counsel may be involved as early as drafting the complaint. Later, appellate counsel can provide firepower for critical motions: motions to dismiss, class certification, and summary judgment.

Then there’s the trial itself. If you’re the kind of attorney who handles highstakes, high-value cases, you should embed an appellate attorney in your trial team.

One reason is obvious: preservation. In the throes of trial, it’s easy to forget an objection here and a proffer there. Did you put that bench conference on the record? And did you move for a directed verdict? Outsource preservation so you can focus on the evidence.

And then there are the major legal questions dealt with at trial. Sometimes these are anticipated and planned for, like the charge conference, which appellate counsel can lead. Other issues come as a surprise. Appellate counsel can take the lead on these issues and work on bench briefs during the evening if needed, while you prepare for the next day’s evidence. It’s a natural division of labor.

Finally, there are post-trial motions. These are the last chances for preservation. And sometimes a well-considered motion can eliminate the need for an appeal altogether, or at least limit the damage. Let your opponent, who didn’t use an appellate attorney, worry about cross-appealing from the grant of your post-trial motion.

Misconception 4: I don’t need an appellate attorney because I can reuse my trial brief

I’ve heard this before from the referring attorney who lost, which came as a shock. Why assume a losing trial brief will become a winner on appeal?

The premise is that the trial judge wasn’t bright enough to get it. But the more plausible explanation is that the message wasn’t received because it wasn’t clear. I’ve seen losing trial court briefs that had all the right pieces to the puzzle, but they were all out of order. To win on appeal, we need to bring clarity and focus on our strongest points.

And that’s before even taking account of the standard of review. A killer trial court argument fizzles out on appeal when the error is reviewed for abuse of discretion. Part of the appellate toolkit is pairing the best arguments with the least deferential standards of review.

The other great value of an appellate lawyer is giving you a fresh perspective on how to present the case. I know this value firsthand. Although my own practice is almost entirely appellate, I occasionally have my own trial court case with an appeal. When you’re the trial attorney, you can be blind to which points are salient and which are clutter.

For that reason, I always have someone else from our appellate team involved with appeals in my own cases. There’s no just escaping the blinders without an independent look from a dedicated appellate attorney.

Troy Shelton is an appellate partner in Raleigh at Fox Rothschild LLP. He partners with trial attorneys to win on appeal in state and federal courts.

Ashley Brathwaite is known as a versatile defense litigator who represents insurance carriers, healthcare companies and providers, and other large corporations whose operations expose them to significant liability.

She was drawn to business litigation defense for the opportunity to interact with professionals who launch corporations and lead them.

Brathwaite earned her bachelor’s degree from Furman University and her law degree from Campbell University. Active in professional organizations, she is president of the N.C. Association of Defense Attorneys. She is a leader in the Federation of Defense & Corporate Counsel and the North Carolina Society of Healthcare Attorneys, and chairs the Wake County Bar Association’s membership committee.

Brathwaite entered law through the healthcare sector, having worked with the vice president for marketing and public affairs at the Greenville, S.C. Hospital System as an undergraduate, and went on to become the hospital system’s internal communications coordinator before enrolling in law school.

As managing partner of Fox Rothschild’s Greensboro office, Richard Coughlin is in charge of overseeing commercial litigation and intellectual property matters for the firm.

Coughlin represents businesses in matters involving patents, trademarks, copyrights and trade secrets, and regularly litigates other commercial and business disputes.

He came to Fox Rothschild in 2018 as a seasoned attorney with 30 years of experience, after the firm had merged with Smith Moore Leatherwood, where Coughlin was a partner, general counsel and risk manager.

Coughlin received his bachelor’s degree from Furman University and his law degree from the University of Georgia School of Law.

He has been named to the list of Future Stars in North Carolina by Benchmark Litigation numerous times, including in 2022-2023.

Coughlin and his colleagues at Fox Rothschild provide litigation, real estate, labor, and employment, corporate and a wide range of other services to clients in industries that include banking and finance, construction, manufacturing, transportation and sports and entertainment. The firm has 29 offices nationwide.

Mel Garofalo credits his career success to the relationships he has cultivated across his 44 years of practice. He counts among his greatest rewards the opportunity to pay it forward.

During Garofalo’s 22-year tenure as Hedrick Gardner’s managing partner, the firm has more than doubled in size, growing from two offices with 35 attorneys to four offices in two states with 90 attorneys. He has mentored many of them over the years.

A graduate of the University of Dayton, Garofalo earned his law degree from Wake Forest University. He is vice chair of the Federation of Defense and Corporate Counsel (FDCC), an invitation-only organization consisting of accomplished defense attorneys, corporate counsel, and insurance industry executives. He has been long active in the North Carolina Association of Defense Attorneys.

Garofalo has spent most of his career focusing on defense litigation. He has tried more than 100 jury trials to verdict in both state and federal court and has handled over 40 appeals before the North Carolina Supreme Court and others.

As managing partner at Parker Poe in Charlotte, Tom Griffin likens his role to handling a complex piece of litigation: constantly moving, always a problem to solve, and always something new and different to do. Guiding his firm through the dramatic changes taking place in the legal industry, he strives to stay on the cutting edge.

Griffin earned his bachelor’s degree from Wake Forest University and his law degree from the University of Virginia. He began his career as an honors attorney with the U.S. Army Corps of Engineers, and has been involved in water law, wetlands, endangered species, National Environmental Policy Act issues, cleanup programs, and many other environmental matters for the last 30 years.

His vast experience includes both defense and prosecution of environmental matters in federal and state court, National Environmental Policy Act (NEPA) cases, hydropower matters, water quality and groundwater claims, administrative claims, and Superfund litigation. His numerous dealings have required coordination with federal and state resource agencies, including consultation with the U.S. Fish and Wildlife Service.

J.D. KEISTER

J.D. Keister recalls spending many of his formative years working in his father’s small-town law office in Ohio.

“While my father’s practice was diverse like many smalltown attorneys back then, the litigation side is what always piqued my interest, especially his business and insurance carrier clients,” Keister says. “Today, I still enjoy the problem-solving involved in litigation and the ability for two lawyers to advocate intensely for their clients while maintaining a cordial and professional relationship.”

Keister has practiced civil and complex litigation at MGC for nearly two decades and is the firm’s practice area leader for litigation. He is also known in the insurance industry for his involvement with different litigation management professional associations, including Claims and Litigation Management, where he is a dean to CLM’s School of Litigation Management and a regular instructor at CLM’s Litigation Management Institute.

He received his bachelor’s degree from Bowling Green University and his law degree from Ohio Northern University Pettit College of Law.

Sara Lincoln

CO-FOUNDER AND ATTORNEY, LINCOLN DERR CHARLOTTE

“Every day, we answer legal questions, factual questions, emotional questions, and motivational questions that swirl around every case,” she said in an interview for her 2019 profile in N.C. Lawyers Weekly’s Women in Justice Awards.

“I am absolutely driven to solve the puzzles I encounter every day.”

Lincoln, a co-founder of Lincoln Derr in Charlotte leads all practice groups through active counsel, litigation, and advising. She is known for her tenacity in the courtroom and focuses her practice in the areas of complex business and medical malpractice litigation.

She is a champion for women in leadership and has led many professional associations, including the N.C. Association of Defense Attorneys, serving as president last year.

“Women today have more opportunities for leadership than we did 26 years ago when I first started practicing law,” she said. “We need to continue to advance women who want leadership roles and have the skills to take those positions on.”

CHRISTOPHER R. KIGER

PARTNER, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN RALEIGH

An experienced litigator, Chris Kiger focuses his practice on product liability, environmental and toxic tort, and business disputes in matters involving catastrophic injury, wrongful death and property damage.

As a partner at Smith Anderson in Raleigh, he has tried numerous cases to jury verdict representing companies in North Carolina and around the country. He credits his mentor and friend, Kirk Warner, with introducing him to litigation defense, and says he was hooked from the beginning.

“When I began practicing with Smith Anderson over 20 years ago, I knew I wanted to try cases, but I was not sure in what area,” Kiger says. “Kirk integrated me into his high-paced products liability litigation practice where I had opportunities to represent sophisticated clients in courtrooms throughout the southeast.”

Kiger earned his bachelor’s degree from Elon University and his law degree from UNC-Chapel Hill.

Looking ahead, Kiger has a goal to try at least 25 civil jury trials through verdict, admitting that it’s a challenging objective.

VALECIA M. MCDOWELL

For more than 20 years, Valecia McDowell has been a go-to attorney in the investigations arena.

She has conducted internal and governmental investigations across four continents, focusing on consumer finance and employee conduct risk including practice and company-wide reviews and racial equity assessments.

The opportunity to deal with complex issues inspires her to strive for excellence.

“I love the complexity of helping large companies investigate and mitigate policies or practices that impact large numbers of employees and customers,” she says. “When the government inquires, or when a company identifies a potential issue, I want to be the one to get the call.”

McDowell is the co-head of the white collar, regulatory defense and investigations group, and head of civil rights and racial equity assessments at Moore & Van Allen in Charlotte. She recently led a team that published a racial equity audit report for CoreCivic, the largest private operator of corrections and detention facilities in the United States.

Robert Muckenfuss has parlayed his affinity for solving the most contentious and complex litigation challenges into a successful career as chair of McGuire Woods’ complex commercial litigation department.

He credits a trailblazing mentor with his success.

“Early in my career, I clerked for Jean Toal, the first female chief justice of the South Carolina Supreme Court, who was a brilliant business litigator prior to being on the bench,” he says. “Justice Toal was a pioneer, both as a litigator and judge and was a major influence on my decision to pursue complex business litigation.”

Muckenfuss received his bachelor’s degree from the University of Virginia and his law degree from the University of South Carolina.

Muckenfuss handles bet-the-business matters and manages multi-front litigation threats, often coordinating extremely large teams.

He believes authenticity is key to excelling in the legal profession and enjoying the experience.

“Litigation is about helping people and companies as either plaintiff or defendant,” he says. “To be successful, you can’t fake it, you must be yourself and enjoy the rush of the competition.”

For Reid Phillips, there’s nothing quite like trying a case to verdict.

“By the time the verdict is read, you are exhausted, yet you have the deep satisfaction of knowing you have applied all of your experience, learning and professional skill, and have done everything that can be done on the client’s behalf,” he says. “Jurors see it, judges respect it, and clients appreciate it.”

Phillips represents companies and their owners in complex business disputes, including defense of class action lawsuits, malpractice claims, and serious personal injury and death claims.

As managing partner of Brooks Pierce, Phillips is responsible for the strategic leadership and overall firm management. He received his bachelor’s degree from UNC-Chapel Hill and his law degree from the University of Texas School of Law.

A leader in the legal profession and his community, Phillips is a former vice president of the North Carolina Bar Association and a past chair of the Community Foundation of Greater Greensboro. He is a fellow of the American College of Trial Lawyers, and in 2021 he received the North Carolina State Bar’s John B. McMillan Distinguished Service Award.

Nearly 40 years into his career as an attorney, Lee Poole still has vivid memories of moving to Charlotte and opening a new office for Cranfill Sumner with less than five years of experience.

“After about six months or so, we had some other, young lawyers head to the Charlotte outpost, and today those early attorneys are still friends and partners,” he said in an interview with N.C. Lawyers Weekly after being named a Leader in the Law in 2020.

Poole, who earned both his bachelor’s and law degree from UNC-Chapel Hill, is managing partner of Cranfill Sumner’s Charlotte office where he focuses his complex litigation practice in the areas of business disputes, premises liability, medical malpractice and commercial trucking and transportation.

He is known for his leadership and excellent client service, skills he says he learned in his childhood in Southern Pines where he ran a paper route and sold peaches door-to-door.

Poole has tried more than 30 cases to a verdict, successfully defended clients in binding arbitrations, and has argued dispositive motions and other matters in both federal and state courts.

Amy Richardson credits her mother for inspiring her to pursue a career in law and to practice business litigation.

“My mom is a fifth-grade schoolteacher turned North Carolina business owner,” she says. “I saw first-hand the impact that litigation, or even the threat of litigation, had on her and her business, and I also saw the part wonderful, client-focused lawyers could play in the success of a business.”

Richardson, a partner at HWG in Raleigh, focuses on legal ethics and professional responsibility matters, white collar defense and complex commercial litigation. She received her bachelor’s degree from UNC-Chapel Hill and her law degree from Duke University.

Recently, Richardson achieved one of her professional goals when she opened the Raleigh office of HBW. “I started my career in a large national law firm in a big city and wanted to bring that caliber of practice and client service to my home state,” she says.

In the future, Richardson hopes to leave North Carolina’s legal system better for having been a part of it.

For an accomplished attorney, outstanding legal acumen is mandatory, but Becky Thornton knows that perseverance and humility — and a sense of humor — can make all the difference in navigating the legal world’s challenges on the way to greater success.

Thornton, a partner in Teague Campbell’s Raleigh office, is known as a diligent advocate and trusted counselor who has built a diverse liability practice representing businesses. She focuses on retail, hospitality, healthcare, and commercial transportation.

First and foremost, she never overlooks the human side of business clients she represents.

“Negative attitudes are often directed at businesses and corporations involved in litigation, and many of the people behind those entities are not well-versed in the litigation process,” she says. “A big part of my role is to educate my clients, work with them to navigate the litigation process to find a favorable resolution, and help them manage risk in the future.”

Thornton is an active in the Defense Research Institute, where she is a member of the Retail Hospitality Committee and the Insurance Law Committee. She serves as networking chair and is involved in the Bad Faith and Trucking substantive law groups. She is also a member of the North Carolina Association of Defense Attorneys and co-chairs Teague Campbell’s Litigation and Risk Management Practice Group.

Over his long career in law, Gray Wilson has learned that the greatest reward to come as a result of his hard work in the office and the courtroom is a satisfied client.

Wilson is a trial lawyer at Nelson Mullins with decades of experience in a wide range of complex litigation matters, including professional liability disputes in the healthcare industry. He has tried approximately 300 cases over the course of his career.

He received his bachelor’s degree from Davidson College and his law degree from Duke University where he was an editor on the Legal Research Board.

A longtime leader in the legal profession, Wilson is a past president of the North Carolina State Bar, the N.C. Bar Association, and the Forsyth County Bar Association, Young Lawyers Division. He also serves on the Lawyers Mutual Liability Insurance Company Board of Directors.

As a community leader, Wilson has long been active in the Old Hickory Council of the Boy Scouts of America, including serving on executive board, and he is a Deacon at Messiah Moravian Church in Winston-Salem.

Wilson says the state of the business economy inspired him to practice business litigation defense, and along the way he has learned that integrity and dedication to doing the hard work leads to success.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

Three consecutive years of high bar passage rate for first-time takers:

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

Three consecutive years of high bar passage rate for first-time takers:

Three consecutive years of high bar passage rate for first-time takers:

Three consecutive years of high bar passage rate for first-time takers: 95% (2018)

( July-Oct. 2020)

Three consecutive years of high bar passage rate for first-time takers:

2020)

Three consecutive years of high bar passage rate for first-time takers: 95% (2018) 92% ( July-Oct. 2020) 92% (2019)

2020)

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