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Appellate attorneys: Why hire them and how to choose them

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Corporate counsel sometimes ask why they should hire a new attorney for an appeal when they already have a lawyer who knows the case. The answer is simple: You are more likely to win the appeal if you hire appellate counsel.

Judges -- the people whose opinion really matters -- say appellate specialists make a difference. Appellate advocacy is a skill that not all trial lawyers have.

"Appellate advocacy is specialized work," according to Ruggero J. Aldisert in his book "Winning on Appeal: Better Briefs and Oral Argument." "It draws upon talents and skills which are far different from those used in other facets of practicing law. Being a good trial lawyer does not mean that you are also a qualified appellate advocate."

Judges also note that trial attorneys who prosecute their own appeals may suffer from "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, 1449-50).

These judges have observed a few of the reasons that hiring an appellate specialist can save your appeal. Here are some more.

A fresh, objective view of the case

Appellate counsel come to the case fresh. They have not been through protracted discovery and trial, which can cause biases that cloud counsel's view of the case. Appellate counsel do not need to defend or justify trial counsel's decisions. Appellate counsel's knowledge of the case comes not from a hard fought and possibly emotional trial, but from the same cold record the court will review. Viewing the case from the same vantage point as the court gives appellate counsel the perspective necessary to identify the issues to appeal and to persuasively argue those issues.

Distance and perspective also enables appellate counsel to objectively assess whether an appeal makes sense at all. Unlike trial counsel, an appellate attorney has not invested hundreds (or thousands) of hours in the case and may be better able to deliver the painful, but necessary, recommendation that an appeal should not be pursued, or that certain arguments should be abandoned.

Procedural expertise

Appeals are governed by complicated rules and deadlines that do not apply in trial courts. Violating these rules can, and frequently does, lead to the dismissal of appeals. Hiring an appellate attorney who is well versed in appellate procedures can help you avoid procedural traps. Bear in mind that many critical deadlines occur soon after the entry of a final judgment or appealable order. It is wise to consult appellate counsel immediately upon learning of an appealable order or judgment.

Expertise in a special kind of persuasive writing

Although both trial proceedings and appeals involve a mix of spoken and written advocacy, the written word becomes dramatically more important on appeal. The briefs frequently determine the outcome of an appeal, so it is critical to hire counsel who knows how to write persuasive appellate briefs.

It also is critical to find counsel with proven ability to write to an appellate panel, as opposed to a trial court. Appellate briefs are not the same as motions or briefs in the trial court. As one court noted, 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" (In re Marriage of Shaban, 2001, 88 Cal. App. 4th 398, 408, 410). Appellate attorneys persuade without using ploys like emotion or strident rhetoric. Those techniques may work in a trial but will only irritate an appellate judge. Rather, appellate counsel persuade with succinct logic, effective use of authorities, and arguments that reflects the concerns of the courts.

The appellate brief is a unique document. Do not trust its writing to those who have not demonstrated their ability to craft such a brief.

Current knowledge of the appellate landscape

Appellate counsel are more likely than trial counsel to follow the trends and patterns emerging in appellate decisions. They will know what issues are on the judges' minds. They will know how your case fits into the patterns. This knowledge enables appellate counsel to better select winning issues and cogently present those issues. Attorneys who do not regularly follow the appellate courts may have more difficulty doing so.

Molding the law

Clients who appear before the appellate courts repeatedly may have special concerns about the overall development of the law. They are concerned not only with the case at hand, but with precedent that will affect future cases. Appellate counsel are accustomed to thinking about the effects of precedent. They are, therefore, well equipped to analyze institutional clients' questions about the overall structure of the law and how a particular appeal will mold the law. Appellate counsel can also help a client decide whether pursuing a particular appeal is likely to produce an undesirable precedent. They can also help a client pursue a long-term strategic vision for shaping the law.

Appellate counsel can help even before the appeal

Many clients do not think about hiring or consulting appellate counsel until an appeal is pending. Sometimes that is too late. Appellate counsel can help make sure all important appellate issues are raised and preserved at trial. Attorneys who handle appeals also are often skilled at drafting law-intensive major motions, such as demurrers or motions to dismiss, summary judgment motions and trial motions. A well-crafted motion can produce an order that will hold up on appeal. In addition, appellate counsel can assist in posturing the case for appeal by framing critical post-trial motions. Appellate attorneys also can help protect corporate assets through bonding and stay procedures. What should you look for in appellate counsel?

Once you decide to hire appellate counsel, you will be faced with a slew of attorneys who claim they handle appeals. The following will help you identify an attorney who will provide you the advantages discussed above.

Appellate experience: Look for attorneys who spend most of their time litigating appeals. These practitioners will know the appellate courts and landscape; they will know appellate procedure; and they will have honed their appellate advocacy skills. Ask whether any of the attorneys who will work on your appeal clerked for an appellate judge. An appellate clerkship can provide an attorney with invaluable insight into the appellate process.

Persuasive writers: Try to find attorneys who write persuasive appellate briefs. The written brief is the most important part of an appeal. In fact, the appellate court may not even grant oral argument in your appeal. Ask to see samples of appellate briefs. A good brief should be engaging, easy to understand and well supported factually and legally.

Independent thinkers: One of the main assets appellate counsel brings is a fresh perspective. To get the most benefit from their vantage point, good appellate counsel must be able to think independently and not be swayed by the history and passions already present in the case. Meticulous researchers: You want your appellate attorneys to be meticulous and dogged in their research. No client wants to attend an oral argument and hear the dreaded question, "Why didn't you cite this controlling case, counsel?" Good appellate counsel will uncover all relevant legal authorities and understand how those authorities affect your appeal. Unlike at trial, where the broad contours of the law may be sufficient, on appeal, every nuance can matter.

Ability to work with trial counsel

Although effective appellate counsel must retain objectivity and independence, most successful appeals arise out of a good working with relationship with trial counsel. Collaboration between trial and appellate counsel can help ensure that the client's goals are met and that the case is litigated cost effectively. Trial counsel can also be helpful in explaining to appellate counsel the motives of opposing counsel, what is not in the record, and why it may matter.

Proper staffing

Find out how your appeal will be staffed. In "Making Your Case: The Art of Persuading Judges," Justice Antonin Scalia and Bryan Garner described the all-too-common method of staffing appeals and its problems: "Every judge is familiar with the embarrassing and distracting spectacle of a senior lawyer at the rostrum butchering an appeal while a capable junior sitting at counsel table, more knowledgeable on the facts and law of the case, writhes in discomfort. The client may think the senior partner is doing a fine job, but the court knows better."

In an appeal, the principal authors of the brief and the person arguing must know the record and the law cold. Do not be afraid to let a capable young attorney who has mastered the record and the law, and who has demonstrated that he or she can handle the appeal, take a lead role. Similarly, do not hesitate to demand that the seasoned senior partner dig into the record and do original research.

In sum, whether you won or lost in the trial court, wise corporate counsel should assess the added value of specialized appellate counsel. The relatively minimal additional expense is often worthwhile -- whether the objective is preserving a victory or reversing defeat. Take the judges' advice on this one.

Mayer Mangan is a member of Latham & Watkins's Supreme Court and Appellate Practice Group and the director of the Appellate Litigation Clinic at USD School of Law. Carlton Smith is also a member of the Supreme Court and Appellate Practice Group and has extensive experience litigating state and federal appeals.

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