charles jones, the lawyer’s lawyers help level the playing field, attorney at law magazine, may...

7/28/2019 Charles Jones, The Lawyers Lawyers Help Level the Playing Field, Attorney at Law Magazine, May 2011.

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Appellate Law Firm of the Month Feature Story

Elliot B. Kula and Daniel M. Samson want to change

the way attorneys view appellate lawyers. While the

appeals process by definition 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 firm, 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 sup-

port, said Kula who is board certified 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 litiga-

tors involved in complex matters.

Kula and Samson sharpened their skills while working at

Greenberg Traurig, one of the largest and most prestigious

law firms in the nation. Kula served as the administrative

head of the department in Miami where he managed a

number of substantial cases and created efficient 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 firms,

they were able to develop innovative

legal theories that reversed the final

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

The Lawyers Lawyers Help Level the Playing Field

Appellate Law Firm Kula & Samson, LLP Gives Attorneys Access to Big FirmExperience and Strategic Litigation SupportBy Charles Jones


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At a Glance

Board certified in Appel-late Law by The Florida Bar,Elliot Kula has had an im-pressive career representingclients covering nearly everyindustry and area of law inboth state and federal ap-pellate courts. Before form-ing his own firm, Elliot ledthe appellate departmentfor Greenberg Traurig in itsMiami office, where he builthis legal expertise and cre-

ated an impeccable reputation. He focused much ofhis appellate practice in commercial and bankruptcy

matters, as well as workers compensation, white-collarcriminal defense, and probate matters.Prior to joining Greenberg Traurig, Elliot was an

Assistant Attorney General for the State of Florida, inthe criminal appeals division. His caseload includedmajor crimes and constitutional issues involvingunreasonable searches and seizures, probable cause,and abuse of government authority. Following that,he was appellate counsel to the statewide insurancedefense firm, Miller, Kagan, Rodriguez and Silver.

Elliot serves on the Florida Statewide NominatingCommission for Judges of Compensation Claims,having been appointed by the Florida Bar Board ofGovernors, and on The Florida Bars Appellate CourtRules Committee. He is a member of The Florida Bars

Appellate Practice and Advocacy Section, and the DadeCounty Bar Associations Appellate Courts Committee,of which he is a former chair. He is also a memberof the American Bar Association and the Palm BeachCounty Bar Association. Among his recent speakingengagements, he participated in a panel presenting onbankruptcy appeals at the Bankruptcy Bar Associations2010 retreat.

Elliot is admitted to practice before the U.S. Court ofAppeals for the Tenth Circuit and the Eleventh Circuit,as well as the U.S. District Courts for the MiddleDistrict of Florida and the Southern District of Florida.He earned a law degree from Hamline UniversitySchool of Law in 1993, and an undergraduate degreein English from the University of Minnesota in 1989.

Elliot is rated AV Preeminent (5.0) by MartindaleHubbell, and was selected for inclusion in Best Lawyersin America from 2006-11 and Florida Super Lawyersfrom 2008-2010. He was a 2010 finalist for the DailyBusiness Reviews Most Effective Lawyers, recognizedfor his work as a member of the team that succeededin reversing a $500 million judgment in BDO Seidman,LLP v. Banco Espirito Santo Intl, 38 So. 3d 874 (Fla. 3dDCA 2010).

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 firm is designed to place legal resources, usually

found at large law firms, in reach of a wider audience.

Every large law firm with a multidisciplinary practice typically

will house an appellate department, comprising former clerks and

seasoned appellate lawyers. Those firms 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 finalist for the Daily Business

Reviews Most Effective Lawyers in the appellate category.

Oftentimes smaller firms will find 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 difficult 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 firms

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 first 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 certification appeal in the Eleventh Circuit

Court of Appeals, because their reputation as skilled appellate and

litigation support attorneys is well known, Berger said. Theirunique 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.


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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 proficiency, 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 firm, 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 firm 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

A Conversation With Elliot Kula andDaniel Samson About Appellate Law:What Every Attorney Should Know

AAL: How do you work with a law firm?

K&S: We work closely with the trial lawyers, analyzing the issues

and developing sound strategies to advance the case in the trialcourt, 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 firms have in-house appellate

attorneys?

K&S: Large corporate law firms 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 benefit 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 firm 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 non-

lawyer, the client must be sure that the attorney will adequately

represent their interests on appeal.

Elliot and Dan have proven time and againtheir value to the commercial litigators withwhom theyve teamed up. As experienced and

highly regarded appellate attorneys, theyreobviously a critically important resource formatters on appeal. I would suggest, however,that Elliot and Dan are perhaps an even moreimportant resource at the trial court level wheretheir knowledge and sophistication can helpframe the litigation from the outset in the most

favorable way possible.

- Sean R. Santini is the president of SantiniLaw. He specializesin 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.


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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

financing 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 briefly left the firm toserve 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 firm 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 certification stage, as

well as successfully overturning adverse forum non-

conveniens 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, theNorth 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, LLP17501 Biscayne Blvd., Suite 430

Aventura, FL 33160Tel. 305-354-3858

Elliot Kula:Tel. 305-773-4992

E-mail: [email protected]

Dan Samson:Tel. 305-726-1131

E-mail: [email protected]

AAL: How do you bill?

K&S: The nature of our work, and our firm, allows flexibility 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 flat 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 flat 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 theirjurisdiction, including preservation issues. Lawyers filing 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.

charles jones, the lawyer’s lawyers help level the playing field, attorney at law magazine, may...

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