In an article published by ACC Docket on December 4, Nelson Mullins attorneys Lorin J. Lapidus and D. Martin Warf, along with Truliant Federal Credit Union General Counsel Stuart Russell, shared insight on why the best time to retain appellate counsel for contentious cases is well before final judgment. 

Institutional and high-profile litigants are embedding appellate attorneys with trial teams early in cases. The attorneys shared how embedded appellate counsel can be a proactive approach to challenging precedent, seeking certification of legal questions, leveraging Rule 15(b) amendments, and correcting clerical errors under Rule 60(a).

"This early involvement is especially important for cases whose outcome can have long-term consequences, such as preventing significant damages, challenging precedent, or settling multi-jurisdictional matters important to the business," they explained. "While the trial team best focuses on presenting the case for an immediately favorable outcome, embedded appellate counsel concentrates on retaining that outcome. They safeguard the record, identify preservation issues, and think several steps ahead."

Lapidus, Warf, and Russell examined key opportunities for embedded appellate counsel to add strategic value, including challenging precedent that rests on faulty foundations, using certified questions in federal court to reshape state law, and employing Rule 15(b) amendments to introduce unpled defenses that could be game changers at trial.

"Embedded appellate counsel help bridge that gap. They ensure trial success is both defensible and durable, while identifying opportunities to advance favorable precedent or close gaps in unsettled law," they noted. "For corporate legal departments managing high-stakes litigation, this approach isn't merely procedural. It's strategic — a way to safeguard outcomes, reduce exposure, and influence the evolution of the law in ways that serve long-term business interests."

You may read the full article here.