7 www.loubar.org March 2026 Your best choice is to proceed with caution. Sure, there is a chance you’ll never need us. But why take that chance? Lawyers Mutual is dedicated to Kentucky lawyers and makes your work our priority. Call (502) 568-6100 or visit LMICK.com for more information on how you can cover and protect your practice. We want you to focus on what matters. counsel differ. Trial lawyers focus on win- ning the case before them, not necessarily on creating a pristine appellate record. They may forgo objections to maintain rapport with the judge or jury, or fail to recognize potentially reversible error in the heat of trial. Post-trial motions offer some opportunity to cure preservation defects but cannot remedy all failures. This underscores the value of consulting appellate counsel before or during trial in high-stakes cases. Standards of Review and Their Strategic Implications Different issues receive different levels of appellate scrutiny, and understanding ap- plicable standards of review is crucial to predicting outcomes. Pure questions of law receive de novo review, giving appellate courts maximum freedom to reverse. Issues involving application of law to fact typically receive more deferential review. Discretion- ary trial court rulings are reviewed for abuse of discretion — a difficult standard to meet. Factual findings are reviewed for clear error or substantial evidence, depending on the jurisdiction. These standards profoundly affect appellate strategy. An appeal challenging a trial court’s interpretation of a statute or contract stands on firmer ground than one attacking cred- ibility determinations or evidentiary weight. Similarly, challenges to jury instructions often fare better than evidentiary rulings, particularly when the instruction misstated controlling law. Standards of review also interact with preser- vation requirements in complex ways. While preserved errors of law receive full review, unpreserved errors typically face plain error review — a far more demanding standard requiring the appellant to show not just error and prejudice, but that the error seri- ously affected the fairness or integrity of the proceedings. In practice, plain error review rarely succeeds. Institutional Considerations and Forum Shopping Experienced appellate counsel evaluate not just the legal issues, but the institutional con- text in which they will be decided. Different appellate courts have different procedural requirements, cultural norms and substan- tive law tendencies. Some courts decide cases largely on the briefs; others heavily weigh oral arguments. Some are receptive to policy arguments and academic authority; others stick closely to binding precedent. Individual judges matter, too. Their prior opinions, academic writings and professional backgrounds often provide insight into how they approach particular types of cases. A panel with extensive criminal defense expe- rience may view Fourth Amendment issues differently than one dominated by former civil practitioners. In jurisdictions permitting publication re- quests or allowing parties to cite unpublished opinions, counsel must also consider whether the case will create precedent. A close ques- tion of first impression may warrant appeal even if reversal seems unlikely, particularly if establishing favorable precedent would ben- efit the client’s broader litigation interests. But some cases are better settled than appealed if the risk of creating adverse precedent out- weighs potential benefits. The Economics of Appeals Financial considerations should also play a significant role in appeal decisions, though they are often overlooked in the immediate aftermath of an adverse verdict. Appellate litigation costs vary based on record size, is- sue complexity and whether oral argument is requested or required. Substantial judgments may require expensive supersedeas bonds or other security to stay enforcement during the appeal. The time value of money also matters. Even successful appeals often result in remand rather than outright reversal, requiring ad- ditional trial court proceedings. The delay inherent in appellate practice — often 18 months or more from notice of appeal to decision — creates opportunity costs and extends uncertainty for clients. Appeals can also create settlement leverage. The prospect of prolonged litigation and un- certain outcomes often motivates parties to negotiate. Appellate counsel should evaluate whether filing a notice of appeal might facili- tate settlement discussions, even if the likeli- hood of prevailing on the merits is modest. The Case for Specialized Appellate Counsel Many accomplished trial lawyers face a difficult question after an adverse verdict: should they handle the appeal themselves or bring in appellate specialists? The answer depends on factors beyond competence or client relationships. Appellate practice demands a different skill set than trial work. Trial lawyers excel at real- time advocacy, witness examination and jury persuasion. Appellate lawyers must master record distillation, issue spotting and per- suasive legal writing under restrictive word limits. While many excellent litigators possess both skill sets, the differences are significant. Fresh eyes offer distinct advantages. Trial counsel may struggle to assess their own strategic choices objectively or identify where the trial went wrong. They may be too close to the facts to recognize which issues have genuine appellate merit. Appellate specialists bring critical distance and can evaluate the record without the emotional investment that accompanies trial work. Specialization also breeds familiarity with appellate courts and judges. Appellate spe- cialists develop relationships with court staff, understand individual judges’ analytical ap- proaches and stay current on emerging trends in appellate jurisprudence. This institutional knowledge proves invaluable in framing argu- ments and anticipating the court’s concerns. Put simply, appellate litigation requires distinct expertise. As with other areas of the law, some practitioners specialize in appeals because sometimes there is a need for a higher level of knowledge, focus and understanding. The question is not whether trial counsel could handle the appeal competently, but whether specialized appellate counsel might handle it better — and whether the stakes justify that investment. Conclusion The decision to appeal requires careful analysis of legal merits, procedural re- quirements, economic costs and strategic implications. It demands understanding of appellate standards, preservation doctrine and institutional considerations. Most im- portantly, it requires realistic assessment of the likelihood of success and the value of that success to the client. By evaluating appeals systematically rather than emotionally and understanding both the opportunities and limitations of appellate review, lawyers can make informed recom- mendations about whether an appeal serves their clients’ interests. Not every unfavorable verdict warrants an appeal, but every potential appeal deserves thoughtful evaluation by counsel equipped to provide it. Griffin Terry Sumner is the Co-Chair of FBT Gib- bons’ Appellate Practice Group. She is a partner in the firm’s Louisville office and a former chair of the LBA’s Appellate Section. Michelle Fox is the acting Chair of the LBA Appel- late Section. She previ- ously served as the chair of the Corporate Law (2023) and Litigation Sec- tions (2024-2025). She is a Managing Associate in FBT Gibbons’ Product, Tort, & Insurance Prac- tice Group. n (Continued from previous page) OPEN POSITIONS: Administrative Law - Vice-Chair AI/IP/Privacy Law Section - Vice-Chair ADR/Mediation - Chair and Vice-Chair Environmental Law - Chair and Vice-Chair Public Interest Law - Chair and Vice-Chair Solo & Small Practice - Chair and Vice-Chair Several LBA Sections have open leadership roles, and we would love to see members step forward. Section leaders help shape CLE programming, strengthen engagement within their practice areas and build meaningful connections across the Bar. The time commitment is manageable and the impact is significant. If you are interested in serving or would like more information about available positions, please contact Lisa M. Murray at [email protected]. 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