I’m a big proponent of having appellate lawyers at trial. Obviously, the client or insurer is not always willing, or able, to bear the cost of having another lawyer attend trial, and the additional expenditure doesn’t make sense in every case. In “big cases,” however – that is, cases in which a lot is at stake from a monetary standpoint, from a business standpoint for the client, or from a precedential standpoint – having an appellate lawyer at trial is a good investment for the client. An appellate lawyer can assist in assuring that there is no error at trial – and thereby avoid the need for appeal – and assist in making sure that any error that does occur is properly preserved for appeal.
At a recent Defense Research Institute (DRI) event, a new lawyer friend made one of the best cases for having an appellate lawyer at trial that I have heard recently. No, she’s not an appellate lawyer. She’s an experienced trial lawyer who handles insurance coverage and bad faith cases. We had a moderated table discussion during lunch about bad faith issues and what a lawyer should do to protect the client and the insurer when an excess verdict is possible or probable. Of course, when an excess verdict is likely, the insurer owes an enhanced obligation to protect the insured. Sometimes that means offering policy limits to settle the case. But what do the insurer and the lawyer do to protect the insured if the plaintiff rejects a policy limits offer? My new friend suggested that one thing the lawyer and insurer should do to protect the insured is have an appellate lawyer at trial in order to give the insured the best chance on appeal if an excess verdict is, in fact, returned.
I haven’t located any cases in which a court has addressed the effect of having an appellate lawyer at trial (or not) on a claim of bad faith. Frankly, I can’t imagine that an insurer could be found guilty of bad faith based on a decision not to pay an appellate lawyer to attend trial, nor conversely, that an insurer could be immunized from a claim of bad faith because it paid an appellate lawyer to attend trial. However, the decision on whether to pay an appellate lawyer to attend trial should not turn on avoiding bad faith liability. If the insurer is truly interested, as it should be, in protecting the insured, it makes sense to have an appellate lawyer at trial when the insured is likely to be exposed to excess liability.