It's not uncommon for defendants in high-stakes cases to use appellate counsel at trial, but the practice seems to have taken off in recent years.

According to some defense attorneys, clients are increasingly bringing in appellate counsel to handle legal issues in the lead-up to and during trials...

According to Robert Palumbos, chair of Duane Morris’ appellate practice, “It frees up the trial counsel to do what they do best, which is to convince 12 lay people of their side of the story. To really be focused on the facts and on connecting with the jury.”

Palumbos said companies engaged in “programmatic litigation” have long employed appellate counsel at trial; however, the strategy has grown more common in the last three or four years across a wide range of industries and practices. He said the strategy has “flowed from those clients who go to trial more routinely to clients who are at risk a little bit less often, but nonetheless the word has gotten out about the value.” Palumbos said most of the trials his appellate practice has covered in the last few years have been in products liability or medical malpractice cases, with a few commercial cases as well.

One Duane Morris client that recently began bringing in appellate counsel at trial is Temple University Health System.

Temple Health executive vice president John Ryan said the practice is now part of the hospital's standard trial strategy—something it first employed in a medical malpractice case that went to verdict last summer.

In August 2024, Temple University Hospital was hit with a $45 million verdict in the case of a patient who claimed he choked on food because the hospital prematurely discharged him. But four months later, a Philadelphia judge ordered a new trial, ruling that the verdict was illogical and exorbitant.

Ryan attributed the post-trial victory to the fact that the hospital had brought in Duane Morris’ Palumbos and Leah Mintz to cover the trial.

“They brought a level of insight and expertise on admittedly very complicated and novel legal issues, such that we were in an extraordinarily strong position to file thoughtful and ultimately successful post-trial motions,” Ryan contended...

Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.