Most companies that experience a loss at trial ask the lawyers
who represented them at trial to also handle the appeal. There are
several good reasons for this. Trial counsel will be intimately
familiar with the pre-trial and trial record. They will have
thought about (and likely researched) the legal issues that are at
the heart of the case. They will have developed a strong working
relationship with in-house counsel responsible for the case. And,
of course, there are obvious cost savings in having the firm that
tried the case also handle the appeal.
Yet this customary practice also has drawbacks. For one thing,
lawyers – particularly trial lawyers – are
nothing if not persistent in their view of their cases. Once they
have developed what they believe is a winning theory of the case,
and once they have advanced that theory through years of discovery,
motion practice and trial, they are unlikely to change their view
merely because they were unable to convince the
