Pull Up a Chair: The Role of Embedded Appellate Counsel in the Trial Court
Every coach knows that teamwork wins games. In the usual sense, that means each player mastering a set position through practice and performance while coordinating with others on their team who will do the same. Yet, other teams have shown they can be more cohesive — and achieve victory — when there is fluidity in play-calling, which loosens once rigid positions.
Take for example “Totaalvoetbal” (translation: Total Football). In the 1970s, the Netherlands national soccer team shattered conventional wisdom with a strategy where no player was fixed in a predetermined position. Defenders could attack while forwards would drop back to defend. They moved as the game demanded, promoting spatial awareness and constant communication. What seemed like complete and utter chaos was actually a disguise for the team’s unified objective to score by covering the entire field through collaboration. Decades later, renowned coach, Pep Guardiola, developed Total Football’s principles into the winning style of “tikitaka” at FC Barcelona, which was also used by Spain’s own national team on the world stage.
So why is the introduction to an article about appellate counsel focused on a soccer strategy featured at length in the third season of the television show, Ted Lasso?[1] Well, in the usual sense, civil litigation has followed a traditional model where an appellate attorney is engaged only once there is a judgment to defend or a loss to challenge. As Erik Scharf and Wayne Atkins explained in their 2025 article in The Florida Bar Journal, Issues When Considering New Counsel on Appeal, there’s nothing wrong with the complete handoff of a case on appeal.[2]
In the article, the author explores another (seemingly popular) approach: embedded appellate counsel. In that scenario, the appellate attorney is retained before a case’s disposition to work in tandem with the trial lawyer. Trial counsel still commands the overall strategy of the litigation while appellate counsel taps in to advise on key legal issues. Rather than try to understand the case from cold transcripts or filings, the appellate attorney helps shape and build the record as it unfolds with an eye toward the preservation and prevention of error. If executed properly, the result is a dynamic that plays out like Total Football: specialists working together fluidly to cover all aspects of the case (minus any appearance of chaos).
This article explains why the embedded-appellate-counsel strategy makes increasing sense as civil litigation only grows more complex in both substance and procedure. Along the way, the article suggests an effective division of labor between the trial lawyer and embedded appellate counsel, and touches on potential ethical concerns that may be avoided.
The Sooner, the Better
Turning the traditional litigation model on its head, one path to success is retaining embedded appellate counsel at the matter’s outset. That way, trial and appellate counsel can divide responsibilities from day one.
This type of collaboration is particularly essential in Florida. Significant amendments to the Florida Rules of Civil Procedure in 2024 aimed to ensure that cases are resolved swiftly based on each circuit’s resources.[3] Indeed, Fla. R. Civ. P. 1.200 now requires that most cases — those on a general or streamlined track — abide by a case management order that includes at least nine specific deadlines for critical stages of the case.[4] Moreover, those cases must follow the time standards for completion specified in Fla. R. Gen. Prac. and Jud. Admin. 2.250(a)(1)(B).[5] As the word “critical” would suggest, those deadlines are no small matter. They cover the gamut of pleadings, discovery, summary judgment, and pretrial motions, and they will be strictly enforced.[6] Securing appellate counsel early confirms their input on the nature of the case management order itself and the availability to help meet strict deadlines.
Another reason to have embedded appellate counsel involved early is that motion practice at the pleadings stage tends to address dispositive legal issues. Consider a defendant’s initial response to a complaint. Procedural defenses like personal jurisdiction, venue, and improper service must be raised properly or risk waiver.[7] Each one of those mentioned touches on a nuanced area of the law that can end a case very soon after it begins.
As for affirmative defenses, a defendant is now explicitly required to support them with “a short and plain statement of the ultimate facts.”[8] Like the dismissal of an improperly pled cause of action, an affirmative defense that is legally insufficient can be stricken.[9] Embedded appellate counsel can draft these defenses to satisfy this pleading standard (with the help of trial counsel) or move to strike the defenses that do not, ensuring the issues are properly framed for appeal regardless of which side prevails.
Summary Judgment Motions
Summary judgment motions tend to crystallize the theories and defenses at issue in a given case for the court to determine whether they present a genuine factual dispute for trial or if they can be decided as a matter of law.[10] This is where embedded appellate counsel proves invaluable, both in navigating Florida’s new summary judgment standard and in handling all-too-common procedural traps.
Florida courts are still adapting to the amended summary judgment standard adopted by the Florida Supreme Court in 2021, which realigned the burden on the movant and nonmovant in accordance with the federal standard.[11] Appellate counsel can assess how this evolving standard may apply to the evidence that the trial lawyer has diligently marshaled so that the case can survive or prevail on summary judgment under the amended standard.
Appellate counsel will also monitor compliance with the summary judgment rule’s precise timing requirements. As noted, the movant should follow the filing deadline set out in the case management order. Once that is done, a response to the motion is due no later than 40 days after service.[12] The motion and response must be served with supporting factual positions.[13] If no response is filed, the trial court may consider the facts undisputed and rule that the movant is entitled to judgment as a matter of law.[14] Also, a hearing cannot be set until at least 10 days after the response deadline, unless a stipulation or court order says otherwise.[15] While the failure to abide by these requirements is typically a reversible error,[16] that challenge can be waived if there is no objection to proceeding to hear and decide the motion.[17]
Beyond timing, appellate counsel should be prepared to object to improper rulings. For starters, the trial court must state the reasons for granting or denying the motion on the record.[18] The trial court cannot grant summary judgment based on grounds never raised in the motion, even if they’re argued at the hearing.[19] In the same vein, the trial court cannot enter summary judgment for affirmative relief not requested in the pleadings or tried by consent.[20] Finally, the trial court cannot consider new arguments or evidence made part of a summary judgment reply without giving the non-movant an opportunity to respond.[21] Each of these errors is reversible but only if preserved. That is the appellate counsel’s domain — spotting error in real time and making the objection that protects the record.
Embedded appellate counsel can also advise trial counsel in the throes of discovery on how to properly seek a postponement under Fla. R. Civ. P. 1.510(d).[22] This request requires a declaration or affidavit under penalty of perjury specifying why the outstanding discovery is expected to produce summary-judgment-defeating evidence.[23] The decision whether to file this declaration will balance trial strategy with appellate preservation. That is, it’s up to trial counsel to weigh the tactical implications of delay while appellate counsel ensures there is a sufficient record, regardless of the outcome.
Nonfinal Appeals
Perhaps the highest calling for embedded appellate counsel in the trial court is to handle the numerous issues that call for a nonfinal appeal under Fla. R. App. P. 9.130(a). These include venue, injunctions, personal jurisdiction, insurance appraisal, various immunities, class certification, enforcement of settlements, allegations for punitive damages, the qualifications of expert witnesses in medical negligence cases, arbitration matters, and certain motions under Florida’s anti-SLAPP statutes.[24] Ultimately, these issues are complex and can determine the entire trajectory of a case. Nonfinal appeals also proceed in a narrow timeframe, which makes an early handoff to an appellate specialist more imperative.[25]
Error Preservation at Trial
When it comes time for trial, the Total Football model reaches its fullest expression. Trial counsel examines witnesses, argues to the jury, and commands the courtroom strategy. Meanwhile, that evidence and argument drive the arguments made by appellate counsel on dispositive mid-trial motions and jury instructions. However, the primary role of the appellate attorney — the one that justifies the entire collaboration — is preserving evidentiary errors as they occur.
The most critical preservation tool is the proffer of excluded evidence. It is an essential component of appellate review unless there is a definitive ruling that, itself, makes clear what evidence was excluded.[26] This rule may seem harsh or overly technical, but it is “necessary to ordered justice.”[27] For one, it actually assists the appellate court with its assessment of whether the error claimed was real rather than imaginary or speculative.[28] On a practical level, it may obviate the need for review altogether because it gives the trial judge the opportunity to reconsider exclusion after being made fully aware of the content and import of evidence it has been asked to admit or exclude. While trial counsel is already calculating how to adjust an examination or presentation based on the trial court’s ruling, the appellate attorney is focused on reconsideration and review.
To proffer excluded tangible evidence, the evidence should be marked for identification as an exhibit, offered at trial outside the presence of the jury, and maintained by the clerk as part of the trial record.[29] For excluded witness testimony, the most effective proffer is to conduct a question-and-answer proffer outside the jury’s presence.[30] Alternatively, counsel can proffer a summary of the excluded testimony and the questions that were barred, either orally or in writing.[31]
At bottom, the presence of embedded appellate counsel will bring a special focus to preservation because appellate counsel is well versed in what the appellate court needs to see in the record for meaningful review. This also frees trial counsel to do what trial counsel does best — adapt to rapid-fire rulings, adjust the presentation on the fly, and maintain a persuasive momentum in front of the jury.
Ethics and Best Practices
To be sure, not every case warrants the embedded-appellate-counsel approach. The client and trial lawyer should think carefully about whether the value, complexity, and longevity of the case justifies the expense. That investment might be a no-brainer for a case with an inevitable nonfinal appeal or novel legal issue, but a closer call in the mine run of business disputes and negligence cases.
If there is an engagement, everyone involved should ensure it complies with the Rules Regulating The Florida Bar. The client and appellate attorney may choose to reasonably limit the objective and scope of the engagement in writing.[32] The engagement should clearly communicate the attorneys’ fee structure — whether hourly, flat, or contingent — and abide by Florida’s reasonable fee limitations.[33] Moreover, the engagement should specify who is responsible for client communication: the trial lawyer, appellate attorney, or both.[34] This sort of clear role definition at the outset prevents confusion and ensures the client understands this dual-counsel arrangement.
Conclusion
Embedded appellate counsel promotes success through collaboration. This article highlights a few of the benefits, but the ultimate hiring strategy is up to the client. In that regard, the client should evaluate — with the help of trial counsel — whether the case’s value and complexity make this dynamic approach worthwhile.
[1] Ted Lasso: The Strings That Bind Us (Apple TV broadcast, aired Apr. 26, 2023).
[2] Erik Scharf & Wayne Atkins, Issues When Considering New Counsel on Appeal, 99 Fla. B. J. 32 (Jan./Feb. 2025).
[3] See In re Amends. to Fla. Rules of Civ. Proc., 386 So. 3d 497, 499-500 (Fla. 2024).
[4] Fla. R. Civ. P. 1.200(d)(2).
[5] Id.
[6] Fla. R. Civ. P. 1.200(d)(2), (d)(3), (e)(1).
[7] Fla. R. Civ. P. 1.140(b).
[8] Fla. R. Civ. P. 1.110(d).
[9] See Parrish & Yarnell, P.A. v. Spruce River Ventures, LLC, 180 So. 3d 1198, 1200 (Fla. 2d DCA 2015); see also Zito v. Wash. Fed. Sav. & Loan Ass’n of Miami Beach, 318 So. 2d 175, 176 (Fla. 3d DCA 1975) (“As in plaintiff’s statement of claim, the requirement of certainty will be insisted upon in the pleading of a defense; and the certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence.”).
[10] See Fla. R. Civ. P. 1.510(a).
[11] Casey v. Mistral Condo. Ass’n, 380 So. 3d 1278, 1284-86 (Fla. 1st DCA 2024) (explaining the movant and nonmovant’s burden under the amended summary judgment standard); Coury v. City of Tampa, 397 So. 3d 805, 810-12 (Fla. 2d DCA 2024) (same).
[12] Fla. R. Civ. P. 1.510(c)(5).
[13] Id.
[14] Fla. R. Civ. P. 1.510(e)(2)-(3).
[15] Fla. R. Civ. P. 1.510(c)(6).
[16] See Hernandez v. Heritage Prop. & Cas. Ins. Co., 400 So. 3d 725, 727 (Fla. 3d DCA 2024) (reversing for failure to comply with timing requirements).
[17] See Ammirabile v. Admiral’s Port Condo. Ass’n, 412 So. 3d 906, 908 (Fla. 3d DCA 2025) (“We find Ammirabiles waived any challenge to the timing requirements of [R]ule 1.510, as they failed to timely object to the joinder during the hearing.”).
[18] Fla. R. Civ. P. 1.510(a); see Lima v. Gargano, 399 So. 3d 1205 (Fla. 3d DCA 2024).
[19] See Flynn v. Wilson, 398 So. 3d 1103, 1111 n.8 (Fla. 2d DCA 2024).
[20] See Cohn v. Mutti, 384 So. 3d 199 (Fla. 4th DCA 2024) (“The order granting summary judgment must be vacated because it awarded affirmative relief that was not requested in the pleadings or tried by consent.”).
[21] Grand Harbor Cmty. Ass’n v. GH Vero Beach Dev., LLC, 395 So. 3d 168, 175 (Fla. 4th DCA 2024).
[22] See id. at 179-80.
[23] Id. at 180.
[24] Fla. R. App. P. 9.130(a)(3)(A), (B), (C)(i), (C)(iv), (C)(v), (C)(vi), (C)(ix), (F)(i)-(iv), (G), (H), (I), (J).
[25] See Fla. R. App. P. 9.130(b), (e).
[26] Fla. Stat. §90.104(1) (2025); Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., 118 So. 3d 867, 869 (Fla. 3d DCA 2013).
[27] Ketrow v. State, 414 So. 2d 298, 299 (Fla. 2d DCA 1982).
[28] Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191 n.1 (Fla. 4th DCA 2005).
[29] Brantley v. Snapper Power Equip., 665 So. 2d 241, 243 (Fla. 3d DCA 1995).
[30] See Fla. R. Civ. P. 1.450(a) (“In an action tried by a jury if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what the attorney expects to prove by the answer of the witness.”); Musachia v. Terry, 140 So. 2d 605, 608-09 (Fla. 3d DCA 1962).
[31] See Martin v. State, 350 So. 3d 446, 452 (Fla. 1st DCA 2022); Farrell v. State, 273 So. 3d 43, 47 (Fla. 4th DCA 2019); Brantley, 665 So. 2d at 242 n.1; Orlando/Orange Cnty. Expressway Auth. v. Latham, 643 So. 2d 10, 11 & n.3 (Fla. 5th DCA 1994).
[32] Rul. Reg. Fla. Bar 4-1.2(c).
[33] See generally Rul. Reg. Fla. Bar 4-1.5.
[34] See Rul. Reg. Fla. Bar 4-1.4(a).
Brandon K. Breslow
Brandon K. Breslow is a partner at the law firm of Kynes, Markman & Felman, P.A., in Tampa, handling appeals and litigation support in civil and criminal cases. He graduated with honors from Stetson University College of Law and was a law clerk to U.S. Magistrate Judge Gary R. Jones (FLND). Breslow serves on The Florida Bar Appellate Practice Section’s Executive Council.
This column is submitted on behalf of the Appellate Practice Section, Joe Eagleton, chair, and Benjamin Paley, Matthew Cavender, Amber S. Nunnally, Huiping (Lily) Liu, Nick McNamara, Sydney D’Angelo, and Darren Goldman, editors.
