Appellate Law Firm of the Month Feature Story

The Lawyers Lawyers Help Level the Playing Field

Appellate Law Firm Kula & Samson, LLP Gives Attorneys Access to Big Firm Experience and Strategic Litigation Support
By Charles Jones

lliot B. Kula and Daniel M. Samson want to change the way attorneys view appellate lawyers. While the appeals process by denition begins after one party contests a ruling by a lower court, and typically at the end of the litigation, these appellate attorneys, who recently left Greenberg Traurig to form their own appellate rm, Kula & Samson, LLP, believe preparing for the appeal begins at the very beginning, and should be part of every legal strategy at the outset of the litigation. The appellate attorney is the quintessential litigation support, said Kula who is board certied in appellate practice by The Florida Bar. We help attorneys analyze issues and develop

their strategies, and by the very nature of our practice, we are wired to look at cases from a different angle. It is that unique perspective on litigation they argue gives added value to litigators involved in complex matters. Kula and Samson sharpened their skills while working at Greenberg Traurig, one of the largest and most prestigious law rms in the nation. Kula served as the administrative head of the department in Miami where he managed a number of substantial cases and created efcient and effective strategies for trial counsel, in addition to his administrative responsibilities. While at Greenberg Traurig, Kula and Samson regularly teamed up, including on an appeal for an estate trustee regarding trust administration. In that case, on a short turnaround and assisting a litigation team consisting of lawyers from three separate law rms, they were able to develop innovative legal theories that reversed the nal judgment and resulted in the return of substantial funds to the estate. In another instance, they teamed up to handle multiple appeals arising out of a highly publicized multi-million dollar bankruptcy that generated nearly two dozen appeals, and resulted in the recovery of substantial assets for the estate. Samson cut his teeth at oral argument before the Eleventh Circuit Court of Appeals in a Section 1983 action, upon appointment by the Court to assist a pro bono appellee. Between them, Kula and Samson have argued in the U.S. Court of Appeals for the Tenth Circuit, the U.S. Court of Appeals for the Eleventh Circuit, as well as every Florida appellate court, and the U.S. District Courts for both the Southern District of Florida and the Middle District of Florida. And

between them, they have nearly 250 written decisions, in addition to per curiam decisions and dispositions by unreported orders. Their extensive backgrounds certainly tested their abilities to navigate thorny jurisdictional and procedural issues, exposing them to almost every substantive practice area. Elliot and I work together to identify key issues before, during, and after the trial, added Samson. We can research with an eye toward developing a strategy, advise on challenging matters, draft legal documents and motions, and represent clients in state and federal appellate courts. Our rm is designed to place legal resources, usually found at large law rms, in reach of a wider audience. Every large law rm with a multidisciplinary practice typically will house an appellate department, comprising former clerks and seasoned appellate lawyers. Those rms understand the critical role appellate lawyers play in developing a winning approach in litigation, said Kula. Especially when attorneys are defending corporate entities in major class actions or handling high-stakes litigation, Kula added, having access to a lawyer who will review every single element of a complex case can make all the difference during the appeal. Kulas efforts earned him recognition as a 2010 nalist for the Daily Business Reviews Most Effective Lawyers in the appellate category. Oftentimes smaller rms will nd themselves disadvantaged because they just dont have the personnel or resources effectively to counter the big-law defense, nor do they often have the time to look at the litigation from the 30,000 foot perspective, a difcult practice while in the trenches, explained Samson. The experience Kula and Samson gained in defending these actions, and their collective 25 years of appellate experience, positions them well to assist those smaller rms in both prosecuting and defending all varieties of appeals, including class actions, as well as complex commercial matters, personal injury disputes, bankruptcies, white collar and other criminal defense, administrative and zoning appeals, and constitutional challenges. The rst call to the newly formed Kula & Samson, LLP came from experienced trial attorney Martin Berger, a named partner with Samole Berger & Hicks, P.A., who focuses on bodily injury and personal injury protection claims, who was pleased to gain access to the duo. As soon as I heard of their new venture, I contacted Elliot and Dan to handle a class certication appeal in the Eleventh Circuit Court of Appeals, because their reputation as skilled appellate and litigation support attorneys is well known, Berger said. Their unique ability to get to the heart of an issue and develop innovative strategies has paid off not only in that appeal, but also in additional matters on which we have since teamed up. While at Greenberg Traurig, Samson displayed his remarkable talent in his representation of The Florida Marlins on appeal preserving the funding for the teams new state-of-the art ballpark. The positive outcome played a pivotal role in the growth of the major league baseball franchise according to the teams general counsel.

At a Glance
Board certied in Appellate Law by The Florida Bar, Elliot Kula has had an impressive career representing clients covering nearly every industry and area of law in both state and federal appellate courts. Before forming his own rm, Elliot led the appellate department for Greenberg Traurig in its Miami ofce, where he built his legal expertise and created an impeccable reputation. He focused much of his appellate practice in commercial and bankruptcy matters, as well as workers compensation, white-collar criminal defense, and probate matters. Prior to joining Greenberg Traurig, Elliot was an Assistant Attorney General for the State of Florida, in the criminal appeals division. His caseload included major crimes and constitutional issues involving unreasonable searches and seizures, probable cause, and abuse of government authority. Following that, he was appellate counsel to the statewide insurance defense rm, Miller, Kagan, Rodriguez and Silver. Elliot serves on the Florida Statewide Nominating Commission for Judges of Compensation Claims, having been appointed by the Florida Bar Board of Governors, and on The Florida Bars Appellate Court Rules Committee. He is a member of The Florida Bars Appellate Practice and Advocacy Section, and the Dade County Bar Associations Appellate Courts Committee, of which he is a former chair. He is also a member of the American Bar Association and the Palm Beach County Bar Association. Among his recent speaking engagements, he participated in a panel presenting on bankruptcy appeals at the Bankruptcy Bar Associations 2010 retreat. Elliot is admitted to practice before the U.S. Court of Appeals for the Tenth Circuit and the Eleventh Circuit, as well as the U.S. District Courts for the Middle District of Florida and the Southern District of Florida. He earned a law degree from Hamline University School of Law in 1993, and an undergraduate degree in English from the University of Minnesota in 1989. Elliot is rated AV Preeminent (5.0) by Martindale Hubbell, and was selected for inclusion in Best Lawyers in America from 2006-11 and Florida Super Lawyers from 2008-2010. He was a 2010 nalist for the Daily Business Reviews Most Effective Lawyers, recognized for his work as a member of the team that succeeded in reversing a $500 million judgment in BDO Seidman, LLP v. Banco Espirito Santo Intl, 38 So. 3d 874 (Fla. 3d DCA 2010).

Elliot and Dan have proven time and again their value to the commercial litigators with whom theyve teamed up. As experienced and highly regarded appellate attorneys, theyre obviously a critically important resource for matters on appeal. I would suggest, however, that Elliot and Dan are perhaps an even more important resource at the trial court level where their knowledge and sophistication can help frame the litigation from the outset in the most favorable way possible.
- Sean R. Santini is the president of SantiniLaw. He specializes in commercial litigation and international arbitration in the United States, Latin America, and the Caribbean.

and Samson stand by their philosophy that strategic planning throughout the life of a case and well-written briefs could possibly redirect the course of a case. More importantly, they want attorneys to understand that changing the way they view appellate law could work to their strategic advantage.

A Conversation With Elliot Kula and Daniel Samson About Appellate Law: What Every Attorney Should Know
AAL: How do you work with a law rm? K&S: We work closely with the trial lawyers, analyzing the issues and developing sound strategies to advance the case in the trial court, and equally so during the appellate process. While our focus is on the legal issues, and crafting an appellate brief that will adhere to the strict appellate standards, the trial lawyers involvement in marshaling the record is crucially important. Additionally, we typically look to the trial lawyer to manage the client relationship, as we view that relationship as a special relationship, in which we participate only as facilitators of a legal argument. AAL: Why do large law rms have in-house appellate attorneys? K&S: Large corporate law rms ordinarily have an in-house appellate team to provide litigation teams with strategic advice, and to craft and draft legal arguments for dispositive motions. This is an added benet beyond leading the charge in the event of proceedings in an appellate court. And while the litigation team is in the trenches, the luxury in a big law rm is access to appellate lawyers to provide guidance from their unique vantage point, looking critically at the law, and tending to view a case from end to beginning. Of course, most importantly, appellate lawyers can assist in utilizing appellate procedures to achieve the best result for the client and prepare large lawsuits for the inevitable appeal. AAL: What should I look for when hiring an appellate lawyer? K&S: Trust is the critical component. Trial lawyers have to trust the appellate lawyer with their case and their client. In the rare instance where an appellate lawyer is hired directly by a nonlawyer, the client must be sure that the attorney will adequately represent their interests on appeal.

In the work Daniel Samson performed for the Florida Marlins during Norman Bramans appeal of the lower court ruling on his challenge to the Marlins new ballpark funding, and in other matters that Daniel worked on for the Marlins, Daniel demonstrated a high level of legal prociency, integrity, and intelligence, said Derek Jackson, Florida Marlins Vice President & General Counsel. These were sophisticated matters and important cases for our organization, and Daniels work on those matters was critical to our success. We know that Daniel and his partner Elliot Kula will have great success with their newly launched rm, and we look forward to seeking their counsel and representation for years to come. Kula and Samson stress that the appellate courts will not review new evidence, nor will they entertain arguments effectively seeking to retry cases. They will review the trial court proceedings to evaluate preserved legal error, and to rule based on precedent. Working with an appellate attorney at each stage of a lawsuit ensures that all potential legal theories and strategies have been explored and that all appellate issues are properly preserved, said Kula. Even outside the litigation context, Kula noted, we can assist with issues arising in bankruptcy, family, immigration, and nearly any practice area. It is our training in issue spotting and advanced legal research and writing that often is a service even to transactional and corporate lawyers, as well as businesses exploring trends and evaluating potential issues. Aiming to break new ground with a forward-thinking outlook, Kula and Samson created their rm in an effort to give all attorneys equal access to top quality appellate counsel throughout the litigation process, and certainly on appeal, which can be complicated without proper guidance. Both Kula

AAL: How do you bill? K&S: The nature of our work, and our rm, allows exibility to accommodate alternative methods, and weve found that clients and trial lawyers are looking more to those types of arrangements. Certainly, we can bill for time on an hourly basis, but it can be more cost effective, since it is a discrete practice, to agree on a at fee for the representation so that our role is easily factored into the overall budget of the case. Even more attractive to clients and trial lawyers, however, is a blended fee structure, including a reduced at fee with an additional fee due (sometimes on a sliding scale) depending upon the outcome of the appeal. AAL: How can an appellate lawyer assist attorneys whose primary practice is not litigation? K&S: Experienced appellate lawyers can assist attorneys in a wide array of practice areas, including immigration, family, and probate. Appellate lawyers provide a value to analyzing legal issues and drafting that run-of-the-mill contract attorneys do not, in that appellate lawyers can utilize their expertise to provide a fresh look at strategy and legal issues, rather than merely produce a document or legal research. AAL: What are some emerging issues in appellate law that attorneys should be aware of? Courts are becoming increasingly sensitive to the borders of their jurisdiction, including preservation issues. Lawyers ling appeals should know in advance how they will respond to a jurisdictional question posed sua sponte by the Court or raised by the opposing party. Appellees should be looking for any way to dismiss an appeal for lack of jurisdiction as an assistant in the border patrol effort.

At a Glance
Daniel Samson exclusively focuses his practice on appellate litigation and trial support. He is most noted for his successful representation of the Florida Marlins in their appeal in connection with the public nancing provisions for the teams new ballpark in Downtown Miami. Daniel began his legal career at Greenberg Traurig, where he gained extensive experience representing clients in both state and federal courts. In 2006, Daniel briey left the rm to serve as the law clerk to then incoming judge of the Third District Court of Appeal, the Honorable Barbara Lagoa, following which he returned to the rm as a senior associate. His practice extends to almost every substantive practice area, including constitutional, personal injury (defense while at Greenberg Traurig, P.A., and now on the plaintiff side), contract, corporate, criminal, family, and bankruptcy law. In addition to general commercial matters, Daniel has successfully handled class action litigation at the certication stage, as well as successfully overturning adverse forum nonconveniens rulings, for such clients as Hilton Hotels Corporation, Florida Farm Bureau, Wal-Mart Stores, Inc., and South Motors. Daniel is admitted to practice before the U.S. Court of Appeals for the Eleventh Circuit and the U.S. District Courts for the Middle District of Florida and Southern District of Florida. He earned a law degree from the University of Virginia School of Law in 2004, and a bachelors degree with high honors in History from the University of Michigan in 2001. Active in the community, Daniel has acted as advisor to Urante Powerhouse Design, Inc., an organization dedicated to funding scholarships for minority students studying art and design. He is also a member of the Dade County Bar Association, the North Dade County Bar Association, the Palm Beach County Bar Association, the Third District Court of Appeal Historical Society, the Dade County Bar Appellate Courts committee, and the American Jewish Committee. Daniel appeared on the panel for the Third District Court of Appeals 2011 Spring Seminar, and presented on the effective use of persuasive authority in appellate courts.

Contact Us: Kula & Samson, LLP 17501 Biscayne Blvd., Suite 430 Aventura, FL 33160 Tel. 305-354-3858 Elliot Kula: Tel. 305-773-4992 E-mail: elliot@kulaandsamson.com Dan Samson: Tel. 305-726-1131 E-mail: dan@kulaandsamson.com