Trial counsel knows a question of first impression is lurking in the background.
Counsel facing a question of first impression like this should develop a strategy with appellate counsel for addressing the question before the trial court and on appeal.
A question of first impression gives trial counsel the opportunity to use the well-reasoned rationale of persuasive authority from other jurisdictions as well as public policy arguments to advocate a client's position.
Trial counsel should not leave a question of first impression to appellate counsel to address on the fly during trial or as an afterthought on appeal.
Because an interlocutory appeal will take time, trial counsel should develop a strategy for raising the question of first impression at a time when interlocutory relief is still feasible without affecting the scheduled trial date.
A Certified Question Of First Impression To The Controlling Jurisdiction May Also Provide Appellate Guidance Prior To Trial