Appellate and Trial Triage

Appeals are often won or lost before the first brief is filed—and often well before trial begins. The legal theories advanced in the trial court, the objections preserved in real-time, the jury instructions requested, the motions made, and the record built under pressure all determine what an appellate court can do later. For many clients, those decisions affect not only the case being tried, but development of the law that governs future claims.

BatesCarey helps clients and trial teams see the appellate battlefield while the trial is still unfolding. Our Appellate and Trial Triage team works with trial teams to identify dispositive issues, preserve error, shape the record, draft key motions, develop jury instructions, pursue interlocutory relief where appropriate, and position the case for the strongest possible result on appeal. The goal is simple: win now, protect later, and avoid leaving decisive issues on the courtroom floor.

Our appellate lawyers have briefed and argued cases in state and federal courts across the country in matters involving bad faith, construction defect, employment disputes, insurance coverage, intellectual property, premises liability, products liability, professional liability, punitive damages, and transportation. BatesCarey brings the same qualities to appellate work that define the firm’s broader insurance practice: sound coverage judgment, precise legal analysis, disciplined record strategy, and the ability to bring clarity to complicated litigation.

Trial Triage adds another layer of protection when the stakes are high. BatesCarey’s appellate attorneys embed with trial teams before and during trial to ensure a fulsome record, draft and argue key motions, develop evidentiary and limine strategies, seek exclusion or limitation of expert testimony, frame jury instruction issues, and evaluate appellate risks as the case develops. This allows trial counsel to focus on the courtroom and jury, while BatesCarey preserves and protects the issues that may decide the next phase of the case.

Clients also receive objective, real-time guidance on how the trial is unfolding. BatesCarey analyzes potential appellate issues as they arise, assesses the likelihood of overturning an adverse verdict, and helps clients make informed decisions about trial strategy, settlement posture, and appellate leverage. In fast-moving litigation, that kind of judgment can change the trajectory of a case.

Consistent with BatesCarey’s holistic approach, appeals are not an afterthought. We bring appellate discipline to trial strategy and trial awareness to appellate advocacy. That combination gives clients coverage from every angle, depth where it counts, and a clear path through the complicated landscape of trial and appellate litigation.

Representative Cases

• U.S. Liab. Ins. Co. v. Stone Cnty. Ins. Agency Inc., No. 25-1699, 2026 WL 1283372 (8th Cir. May 11, 2026); Successfully obtained affirmance of a judgment for an insurer that it had no duty to defend a consent judgment entered against a broker-policyholder, where an exclusion barred coverage for the policyholder’s failure to pay its clients’ insurance premium and all related liability. 
• Starr Indem. & Liab. Ins. Co. v. Am. Com. Barge Line, LLC, — N.E.3d —, 2026 WL 1141405 (Ind. Ct. App. Apr. 28, 2026); Obtained interlocutory review and reversal of a judgment for a policyholder, with the court finding no coverage for pollution liability under several bumbershoot policies, based on a watercraft limitation applicable to the general liability coverage part—protecting the excess insurers’ collective $100M+ limits.
• Martinez v. A N Webber Inc., No. 2024L010225 (Ill. Cir. Ct. 2026); As embedded appellate counsel, assisted trial team in defending a damages-only trial arising from a trucking accident, where the permanency and extent of plaintiff’s injuries were sharply disputed.
• Wilson v. Landstar Ranger, Inc., No. 2024L940 (Ill. Cir. Ct. 2025); As embedded appellate counsel, helped secure a defense verdict in a high-exposure broker liability action arising from an injury during the loading of a tractor-trailer, by establishing that the broker did not retain control over the motor carrier sufficient to impose vicarious liability. 
• Unitrin Auto & Home Ins. Co. v. Sullivan, 243 A.D.3d 838 (2d Dep’t 2025); Successfully obtained affirmance of a judgment holding that an insurer had no duty to indemnify damages due to an assault.
• New Hampshire Ins. Co. v. TSG Ski & Golf, LLC, 128 F.4th 1337 (10th Cir. 2025); Successfully obtained affirmance of a judgment for insurers that no coverage was owed for an underlying lawsuit alleging the policyholders knowingly published false statements in a debt-collection letter, based on exclusions for personal and advertising injury arising from publication of knowingly false material.
• In re Alexion Pharms., Inc. Ins. Appeals, 339 A.3d 694 (Del. 2025); Successfully obtained reversal of a judgment against multiple D&O insurers by persuading Delaware’s high court that a later-filed securities lawsuit related back to an earlier SEC investigation, eliminating coverage under the D&O polices in effect when the securities lawsuit was filed.
• Swan v. Villas Condo. Unit Owners’ Ass’n, 2024-Ohio-2313; Successfully obtained affirmance of a judgment enforcing a settlement agreement, even though the parties had failed to memorialize the agreement in writing.
• Opioid Master Disbursement Tr. II v. ACE Am. Ins., 688 S.W.3d 690 (Mo. Ct. App. 2024); Successfully secured affirmance of dismissal of an opioid-coverage lawsuit, with the court holding that the policies’ forum-selection clauses were mandatory and enforceable.
• Gonzagowski v. Steamatic of Albuquerque, Inc., 533 P.3d 1068 (N.M. June 22, 2023); Successfully persuaded the New Mexico Supreme Court that the collateral source rule does not apply to plaintiff’s post-judgment settlement with a co-defendant.
• Tonoga, Inc. v. N.H. Ins. Co., 201 A.D.3d 1091 (3d Dep’t 2022); Successfully obtained affirmance of a judgment for an insurer on the basis that qualified and absolute pollution exclusions precluded coverage for PFAS environmental contamination—the first published decision finding that PFAS chemicals are irritants, contaminants, or pollutants.
• San Diego Unified Port Dist. v. Landmark Ins. Co., 809 F. App’x 407 (9th Cir. 2020); Successfully obtained reversal on multiple grounds and entry of judgment for an insurer, with the appellate court agreeing that pre-1986 umbrella/excess policies did not cover pre-suit claims.
• Sanders v. Ill. Union Ins. Co., 2019 IL 124565; Successfully obtained a judgment holding that coverage under occurrence-based policies for malicious prosecution claims is triggered only at the time of wrongful charging, and not by subsequent retrials or exoneration.
• Chiquita Brands Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 57 N.E.3d 97 (Ohio Ct. App. 2015); Successfully obtained affirmance of a judgment requiring the policyholder to repay $13 million in defense costs and prejudgment interest following reversal of an erroneous duty-to-defend ruling.
• Chiquita Brands Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 988 N.E.2d 897 (Ohio Ct. App. 2013); Successfully obtained reversal of a judgment for the policyholder on the basis that its conduct in bankrolling foreign terrorists was not accidental and the injury occurred outside the policy period.