When asked to write this article, I thought back 30 years, to the first time I was retained to act as an appellate monitor for the defense. It was a personal injury trial in Oklahoma City and the local trial attorney refused to make a record of objections to the jury instructions, informing me that “the judge doesn’t like objections to the charge.” I finally made them myself, incurring the judge’s wrath along the way. Since that time, monitoring or “embedded” appellate counsel have become more common, and the practice has gained more acceptance by trial counsel and judges. To my knowledge, however, no manual describes the practice, which is highly variable and adapts to a variety of cases, personalities and cost constraints. In an effort to help fill the void, I am happy to offer some of my own experiences, as well as thoughts on what to expect if you get a call from a client who wants to retain you as an embedded appellate counsel for the defense in an upcoming trial. Many thanks to my partners Susan Audey and Ben Sassé, who contributed their own experiences and suggestions for this article.

Read the article here.