Appellate lawyers in business litigation used to get hired once the verdict was announced.
But more and more often, corporate attorneys are bringing them into the process even before the jury deliberates so they're ready for an immediate appeal if the verdict doesn't go their way.
This evolution in legal culture means a business boom and increased competition among L.A.-based appellate attorneys.
"Sophisticated clients are becoming more and more aware that an appellate lawyer can be useful to be consulted during the trial process," said Kent Richland, a name partner at the Los Angeles-based appellate boutique Greines Martin Stein & Richland LLP.
Greines Martin is one of the state's largest law firms specializing in appellate matters, and the change in practice has boosted business there and at California's other largest appellate boutique, Horvitz & Levy LLP.
Several national firms maintain appellate practice groups in their Los Angeles offices and those offices are busier, too. These include Washington, D.C.-based Akin Gump Strauss Hauer & Feld LLP and Pittsburgh-based Reed Smith LLP.
Increasingly, firms want to get some of the appeal preparation business, too.
"The environment has become more competitive," said David Axelrad, a partner at Encino-based Horvitz & Levy. "We have to be on our game and market the firm much more aggressively then we might have had to do in the past."
Appellate attorneys don't bill 10- to 12-hour days the way other lawyers do because the specialty is research and writing intensive. Appellate specialists generally bill $300 to $600 per hour, about the same as other specialized attorneys. The cost for an appeal runs about $150,000.
And it's not a frenzied growth sector, because it takes years for an attorney to acquire appeals experience. But there is a consensus that the appellate practice is growing.
Of course, the trend isn't being cheered in every quarter.
Some attorneys see the presence of appellate attorneys at their trials as a vote of no confidence by the client.
Akin Gump's Rex Heinke, who is based in Century City and heads the firm's national appellate group, views the firm's preverdict appeals work as key to providing clients with a variety of services.
"We are trying to provide the best legal representation to clients, and believe that having an appellate group is part of that mix," he said.
Heinke said about 60 percent of the appeals he handles are matters that were originally tried by Akin Gump lawyers.
Los Angeles entertainment litigator Richard Charnley, a partner at San Jose-based Ropers Majeski Kohn & Bentley LLP, recently worked side by side with an appellate specialist colleague on a case involving Los Angeles-based Arenas Entertainment.
Arenas, an entertainment marketing company, appealed a judge's ruling in a dispute with Empire Film Productions Inc. over distribution payments. Arenas believed the matter was restricted to arbitration, but the judge granted Empire's request for the case to move forward in a state court. The appellate court came back with a ruling two days later in Arenas' favor.
Charnley said that the appellate specialist gave valuable guidance during the trial, and that led to Arenas winning the appeal.
"We talked with our appellate specialist, and he said, 'We need to have more information on the record,' " Charnley said. "We were able to present more information to the trial court before we appealed, and that never would have happened if we didn't have an appellate specialist on board."
But as large firms seek to expand their own appellate departments in response to the increased demand, Heinke does not expect appellate-only firms such as Horvitz & Levy or Greines Martin to fade away.
Greines Martin opened it doors in 1983 with a group of four lawyers; it has since grown to 23. Horvitz & Levy celebrated its 50th anniversary in 2007 and is home to more than 30 appellate attorneys.
Earlier involvement in cases is not about racking up billable hours, appellate lawyers say, but helping the trial attorney establish a strong case record of filings for a possible appeal.
"The trial court is the building blocks of a case," Axelrad said. "If a record is carefully built and issues are properly reserved, it maximizes the chances for success."
They also guide trial attorneys on strategies that can help win cases.
"One of our partners who does a lot of work for the county of Los Angeles and other governmental entities spends a great deal of time on the phone with trial lawyers who are trying cases," Richland said. "They want to know how should I write this jury instruction or should I make this motion or which arguments will work."
The guidance can create some tension.
"It's a cultural thing. Lawyers want to hold on to their cases and most think if they can write a good trial brief then they can write a good appellate brief. And they can't," said Robin Meadow, a partner at Greines Martin who practiced as a litigator at Los Angeles-based Loeb & Loeb LLP. "The skill set is fundamentally different, and people who are sophisticated about this practice, which means sophisticated trial lawyers and clients, understand that."
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