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