Why retain an appellate attorney?
© 2019 Chris Ford, Esq., Ford Law AZ
This paper explains the value of retaining appellate counsel if you plan an appeal. The highlights are:
Appellate and Trial practices compared
Most of us are familiar with trial court proceedings, either having been involved in litigation ourselves or seen fictitious (or real) trials on television. At trial, both sides present evidence and make arguments, and a finder of fact – usually a jury, but sometimes a judge – will determine within the framework of applicable law which party should prevail.
In contrast, the purpose of an appeal is to determine whether the trial court committed an error that was serious enough to prejudice (i.e., harm) one of the parties. Appellate practice involves deep research into the law, carefully drafted written legal arguments and relatively little time spent in the courtroom. Thus, in contrast to a party at trial, an appellant litigant is likely to win or lose on the strength of counsel’s written arguments.
The best trial lawyers employ a combination of investigation and discovery skills along with carefully developed trial strategies, persuasive presentation of evidence and courtroom character to sway a judge or a jury. But after the courtroom door swings shut on the trial, the nature of the litigation – and the skills needed to succeed – change.
Trial attorneys invest an enormous amount of energy and, often, emotion into trial. But the very energy, skills and hundreds (if not thousands) of hours a trial attorney invests at trial may produce “tunnel vision” if she or he takes the same case on appeal. A California appellate court observed that trial attorneys, having tried the case themselves, “become convinced of the merits of their case. They may lose objectivity . . . .”[1]
Another pointed out that “[T]he orientation of trial work and appellate work is obviously different.”[2] Appellate judges decide cases in the solitude of their chambers, typically benefit from greater research attorney staffing and usually are less time-pressed than trial judges. Accordingly, they are far more likely than trial judges to “identify errors in counsel’s reasoning, misstatements of law and miscitations of authority, and to do original research to uncover ideas and authorities that counsel may have missed, or decided not to bring to the court's attention.”[3]
Alex Kozinski, former chief judge of the U.S. Court of Appeals for the Ninth Circuit and well known for his pithy writing style, shared this tongue-in-cheek warning against allowing a trial attorney to take the appeal: “When a lawyer resorts to a jury argument on appeal, you can just see the [appellate] judges sit back and give a big sigh of relief. We understand that you have to say all these things to keep your client happy, but we also understand that you know, and we know, and you know we know, that your case doesn’t amount to a hill of beans, so we can go back there in the conference room and flush it with an unpublished decision.”[4]
Thus, when the trial ends, courtroom tactics and larger-than-life personality take a back seat to the abilities to research thoroughly, write clearly and grasp complexity and subtlety. A capable appellate attorney will have developed these abilities.
The Case for Appellate Counsel
Fresh and objective perspective: Appellate counsel are not invested in any particular approaches taken or legal theories followed at trial. Their knowledge of the case will derive not from hard-fought discovery and courtroom proceedings, but from a record that becomes fixed once the trial ends. Examining the same record, the appellate attorney can identify issues to appeal, bearing in mind how the reviewing judges may view that record. The appellate attorney also can offer the important service of independently advising the client on whether taking a case on appeal makes sense.
Understanding of appellate process: Before the first brief is written, appellate counsel must contend with complex and arcane issues, first among them whether a ruling handed down by a trial court even is appealable. Others include what standards of review will apply and which issues may be winnable, not merely arguable. Appellate counsel’s familiarity with procedure in a court of appeals often serves as a tactical advantage and can help the client avoid procedural traps that could result in dismissal of an appeal.
Written advocacy: Cases on appeal largely are won or lost based on the written argument.[5] Appellate attorneys know the level of sophistication required for successful written advocacy. Appellate judges look favorably on briefs shorn of trial-level hyperbole that are clear, highly organized and focused on the challenged legal issues. Lack of concision lengthens the odds of success.[6] California’s Shaban Court puts it succinctly:
“The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product. [Footnote.] Rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.”[7]
Oral advocacy: Oral argument before an appellate panel frequently lacks the drama of trial advocacy. Each lawyer’s presentation is brief. The advocate must know the record and appropriate body of law thoroughly and be prepared to present focused and academic argument on fine points of law.
Evolution of law: Some clients are interested in not only the outcome of their case, but the direction of law in general. Published cases from appellate courts create precedent that trial courts (and in some cases, other appellate courts) must follow in deciding future cases. Appellate counsel not only typically are better equipped than their trial court colleagues to help a court shape precedent, but also warn a client when pursuing a certain appeal may result in creation of unfavorable precedent.
The appellate process [click here for further information]:
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Appellate counseling during the trial
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Trial court issues its judgment or order
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Review the record and advise regarding appealability
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File notice of appeal
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Designate the record on appeal and file related papers
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Draft brief(s)
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Engage in oral argument
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Receive and review with client the court’s opinion
[1] Estate of Gilkison, 77 Cal.Rptr.2d 463, 466-67, 65 Cal.App.4th 1443, 1449 (Cal. Ct. App. 1998).
[2] In re Marriage of Shaban, 105 Cal.Rptr.2d 863, 870, 88 Cal.App.4th 398, 408-09 (Cal. Ct. App. 2001).
[3] Id.
[4] Alex Kozinski (former judge, U.S. Court of Appeals for the Ninth Circuit), The Wrong Stuff, 1992 B.Y.U. L. Rev. 325, 333 (1992), at https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1748&context=lawreview).
[5] Judges and attorneys may disagree on the relative importance of oral advocacy in an appeal, but “no one disagrees with the fundamental proposition that a brief is by far and away the most important feature of the appeal. . . . [M]ost cases are won or lost on the briefs.” William J. Bauer & William C. Bryson, The Appeal, The Docket 12 (1987) (quoted in Austin L. Parrish & Dennis T. Yokoyama, Effective Lawyering: A Checklist Approach to Legal Writing and Oral Argument 50 (2007)).
[6] “[A]s the French poet Francois Fenelon explained, ‘the more you say, the less people remember. The fewer the words, the greater the profit.’” Melaleuca Inc. v. Bartholomew, No. 4:12-cv-216-BLW, 2012 U.S. Dist. Lexis 166725 (D. Idaho Nov. 19, 2012).
[7] In re Marriage of Shaban, 105 Cal.Rptr.2d at 871, 88 Cal.App.4th at 410.