Why Hire Appellate Counsel?

Any member of the Bar can handle appeals. A lawyer does not need a special license to do so. However, some lawyers focus on appellate work. These are often referred to as “appellate lawyers.” A good definition of an appellate lawyer is that it is one who handles appeals in cases in which he or she was not the lawyer in the trial court.

An appellate lawyer does not necessarily replace the trial court lawyer once a case goes to appeal. Often, trial and appellate lawyers work collaboratively. Sometimes, though, an appellate lawyer takes over entirely.

A Fresh Mind

An appellate lawyer can bring a fresh perspective to a case. As the Court of Appeal itself wrote in a published decision: “[T]rial attorneys who prosecute their own appeals… may have ‘tunnel vision.’ Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450.)

A Different Skill Set

A fresh mind is important. But an appellate lawyer brings much more than that to a case. He or she also brings skills that are essential to successful appellate advocacy and that differ fundamentally from those used by trial lawyers.

In his famous book Winning On Appeal, Judge Ruggero Aldisert, of the United States Court of Appeals for the Third Circuit, points out that “appellate advocacy is specialized work” that “draws upon talents and skills which are far different from those utilized in other facets of practicing law.” (Winning on Appeal, §1.1, NITA, 1999.)

The job of a trial court lawyer is to prepare over many months for a live, tightly choreographed presentation to a judge or jury who will be called upon to decide facts. That job involves gathering evidence, preparing witnesses, and, ultimately, persuading the trier of fact that one version of events is true and that another is false. The decision-makers are often nonlawyers. A trial is a largely oral presentation that can last for days or weeks. It has an element of theater. And it is preceded by a lengthy pretrial phase in which lawyers posture and play an elaborate game of poker with regard to settlement.

The appeals process, by contrast, involves a pure analysis of the law. And the battle is largely fought on paper. The paramount skill involves written argument. The oral component, if any, may last less than 15 minutes – each minute being intense. The facts are generally deemed to be those that were found true by the trial court. The appellate lawyer must master those facts, but cannot change them (except to the extent that he or she can argue that certain evidence should or should not have been admitted). Rather, the appellate lawyer conducts rigorous scrutiny to identify legal error.

Referring to the differences between trial and appellate work, Judge Aldisert notes: “Too many lawyers fail to make this adjustment. Indeed, too many lawyers do not even realize that an adjustment has to be made. All of which leads to the question I am often asked: “What is the quality of appellate advocacy today?” There is no quick answer… but suffice it to say that there is a vast wasteland of mediocrity out there. At the very least, the quality quotient is not commensurate with the fees being charged…” (Winning on Appeal, §1.1, NITA, 1999.)

Other judges have expressed the same frustration. In one of its published opinions, In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408-410, the Court of Appeal considered the arguments of a lawyer who, in the context of a fee dispute, tried to argue that appellate work consisted merely of “repackaging” the legal argument – known as “points and authorities” – prepared in advance of trial. That contention did not go down well with the Court of Appeal, which wrote:

“Appellate work is most assuredly not the recycling of trial level points and authorities… For better or worse, appellate briefs receive greater judicial scrutiny than trial level points and authorities, because three judges (or maybe seven) will read them, not just one judge. The judges will also work under comparatively less time pressure, and will therefore be able to study the attorney’s “work product” more closely. They will also have more staff (there are fewer research attorneys per judge at the trial level) to help them identify errors in counsel’s reasoning, misstatements of law and miscitations of authority, and to do original research to un cover ideas and authorities that counsel may have missed, or decided not to bring to the court’s attention…

“Then there is the simple matter of page limitations. Appellate courts are more liberal than trial courts as to the number of pages counsel are allowed. Granted, the extra length of the “briefs” in appellate and reviewing courts is not always a good thing, but the difference does mean that appellate counsel will have much more freedom to explore the contours and implications of the respective legal positions of the parties. Part of that exploration may mean additional research that trial counsel simply will not have had the time to do.

“Finally, because the orientation in appellate courts is on whether the trial court committed a prejudicial error of law, the appellate practitioner is on occasion likely to stumble into areas implicating some of the great ideas of jurisprudence, with the concomitant need for additional research and analysis that takes a broader view of the relevant legal authorities…

“The upshot of these considerations is that appellate practice entails rigorous original work in its own right. 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. 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.”

Conclusion

In short, it simply does not make sense to entrust an appeal to a lawyer who handles this type of work on the side. The vast majority of litigants get only one shot at an appeal. It is essential to “do it right.”