On January 15, 2021, the news leaked that Governor Doug Ducey would appoint to the bench of the Superior Court Mesch Clark Rothschild’s very own Gary J. Cohen—the original Tri-Pellate lawyer! With his elevation, Gary has passed his mantle to a new generation of tri-pellate lawyers, Alex Winkleman and Bern Velasco. Stepping into the Hon. Cohen’s gargantuan shoes is no task for the faint of heart! Gary, we thank you for your mentorship and look forward to reversing you on appeal!
It is a question we often hear (and one we ask ourselves): what is the tri-pellate lawyer? As the New Generation of Tri-Pellate Lawyers, it is our turn to answer that question.
Fundamentally, the tri-pellate lawyer is one who understands that a win at the trial court is only a win if it is upheld on appeal. Consequently, the tri-pellate lawyer approaches every case in a manner that will give the client the best chance of success at trial and on appeal.
Our stomachs have all turned (or, for the defense attorneys among us, our hearts have leapt) when a published opinion vacates a multi-million-dollar verdict. We know that however great it feels to hear the jury return a verdict for your client, it feels much worse to have it wiped out. Similarly, it hurts just the same to have the Court of Appeals waive review of a reversable issue when it determines it was not preserved for appeal.
Accordingly, a tri-pellate lawyer is one who views every case through the lens of an appeal. The tri-pellate lawyer knows the relevant law and rules of procedure so that he or she can make the proper record at the right time so the trial court can make the correct ruling. The tri-pellate lawyer knows he or she may be taking an appeal and is sure to identify and fully develop the key legal issues. The tri-pellate lawyer knows he or she may also have to defend the trial court as appellee, and so he or she avoids erroneous arguments or taking positions that will not stand on appeal. When it comes to factual issues, the tri-pellate lawyer makes sure the reviewing court has access to a complete record; he or she includes the necessary exhibits and makes offers of proof.
When it comes to the appeal, the tri-pellate lawyer knows an appellate panel is not just a second jury and will not be swayed by passionately arguing the facts of the case and crying that “justice must be done!”’ Instead, having made the best record possible, the tri-pellate lawyer surgically and dispassionately attacks or defends the decisions of the trial court. In fact, the tri-pellate lawyer thinks twice before filing a notice of appeal and does not notice an appeal simply because he or she lost the case. Instead, the tri-pellate lawyer understands the different standards of review at play and knows the record inside and out. Rather than file shotgun appeals, the tri-pellate lawyer strategically selects the best, most viable issues for review. The tri-pellate lawyer carefully focuses an appeal to give it the best chances of success.
With these principles in mind, we look forward to sharing best practices for a new generation of tri-pellate lawyers. We hope that our work on this column helps improve trial outcomes and helps lawyers navigate the sometimes arcane world of appeals. With this goal in mind, maybe a more optimistic tone is in order: good luck on the bench Gary, we look forward to successfully defending your decisions on appeal!
