Why involve an appeals specialist?
Any member of the Bar is allowed to handle appeals. A lawyer does not need a special license to do so. However, only a small number of lawyers are certified by The State Bar of California Board of Legal Specialization as Specialists in Appellate Law. California attorneys certified as appellate specialists must demonstrate a high level of experience in terms of the number of appeals they have handled and the types of tasks they have performed, pass a full-day written examination in this field, fulfill ongoing education requirements, and be favorably evaluated by other attorneys or judges familiar with their work.
By involving a certified specialist to handle or consult on an appeal, a client has assurance that the lawyer has been rigorously vetted and shown to have the qualifications and experience necessary for this demanding type of work.
A fresh mind
An appellate specialist 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 specialist 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, the late Judge Ruggero Aldisert, of the United States Court of Appeals for the Third Circuit, pointed 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. The facts are generally deemed to be those that were found true by the trial court. The appellate lawyer must master those facts, and narrate them in a compelling way, 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 noted: “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 case, In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408-410, the California 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, which wrote: “Appellate work is most assuredly not the recycling of trial level points and authorities…” It went on to say that a lawyer “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.”
Conclusion
In short, it simply does not make sense to entrust an appeal entirely to a lawyer who handles this type of work on the side or who does not have proven expertise in this field. The vast majority of litigants get only one shot at an appeal. It is essential to “do it right.” That’s why it makes sense to involve a specialist, either as a consultant or to take the lead role.
By involving a certified specialist to handle or consult on an appeal, a client has assurance that the lawyer has been rigorously vetted and shown to have the qualifications and experience necessary for this demanding type of work.
A fresh mind
An appellate specialist 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 specialist 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, the late Judge Ruggero Aldisert, of the United States Court of Appeals for the Third Circuit, pointed 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. The facts are generally deemed to be those that were found true by the trial court. The appellate lawyer must master those facts, and narrate them in a compelling way, 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 noted: “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 case, In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408-410, the California 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, which wrote: “Appellate work is most assuredly not the recycling of trial level points and authorities…” It went on to say that a lawyer “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.”
Conclusion
In short, it simply does not make sense to entrust an appeal entirely to a lawyer who handles this type of work on the side or who does not have proven expertise in this field. The vast majority of litigants get only one shot at an appeal. It is essential to “do it right.” That’s why it makes sense to involve a specialist, either as a consultant or to take the lead role.