Posts in Appellate
Why Trial Lawyers Should Not Handle Their Own Appeals

Following an adverse outcome at trial or on a dispositive motion, trial lawyers may be tempted to take on their client’s appeal. After all, who knows the case better than the attorney who has lived with it from the beginning? A sense of pride and a desire to right perceived wrongs may come into play as well. However, there are many reasons why trial lawyers should not do their own appeals, including the risk that tunnel vision will prevent trial counsel from seeing other potential theories and issues in the case, as well as the fact that trying cases and appealing them require different skill sets and knowledge of different procedural areas of law. For these reasons, the best thing busy trial attorneys can do for their client’s appeal is to consider bringing in appellate counsel.

Appellate Attorneys Bring a Fresh Set of Eyes to a Case

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It is often said that introducing a fresh set of eyes to a problem is a great way to find a solution. The same can be said for an appeal. Not only do appellate attorneys come to a case with no preconceived notions or past experience with the case, but they also come with the ability to spot appellate issues where trial lawyers might not even think to look. What is more, the client will likely receive a more objective assessment of the merits of an appeal from an appellate attorney who has not lived through the case like the trial lawyer has.

Trial lawyers approach their cases a certain way. They develop and communicate a core theory to the fact-finder, whether it is a judge or a jury. This makes for a strong, focused presentation at trial, but invariably results in other potential legal theories or issues being missed or given little attention. This can be problematic for a trial attorney on appeal, because the appellate judges reviewing the case - who are invariably more legally sophisticated and intelligent than the average lay jury - may be more interested in an entirely different theory than what was relied on at trial. The trial attorney may be unprepared to address the “new” and potentially nuanced legal theory, having ignored it at trial. Appellate attorneys are adept at mastering the often voluminous trial record; researching legal principles, however obscure; understanding subtle distinctions and emerging legal trends; and bringing everything together into a concise, persuasively written brief.

 

Trial Lawyers Are Not Always Expert Writers

Just as trying a case requires a particular skill set, appellate litigation is a unique area of a practice requiring specific skills. While trial attorneys often excel at ferreting out information through discovery, questioning witnesses and making spontaneous tactical decisions in court, they are not necessarily strong writers. Often an appeal is decided “on the briefs,” without the opportunity for oral argument, so an appellate lawyer must be, first and foremost, a skilled writer. By contrast, few trial lawyers are likely to attribute their success at trial to their writing ability.

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In addition to requiring different skill sets, trials and appeals are directed to different audiences. Arguing a case before a jury is very different from arguing a case before a panel of appellate judges. Arguments that might persuade a lay jury have little relevance in an appellate court. Rather than arguing factual matters and credibility determinations, as is the case during trial, appellate advocacy involves presenting specific legal arguments concerning rulings made by the trial judge, the jury instructions, and other questions of law. The outcome of an appeal will be a determination as to whether the law was applied correctly during trial or in a dispositive motion.

Because appellate courts focus primarily on questions of law, not on questions of fact like the trial courts, the arguments an appellate attorney presents in the brief, and in oral argument where permitted, will be very different than those made during trial. During oral argument before a panel of judges, appellate attorneys are often called open to address hypotheticals, distinguish cases, respond to intricate statutory or contract construction inquires, and discuss broad public policy issues. Sometimes judges ask questions that seem out of left field. To respond, appellate attorneys must know ALL of the applicable case law and how it applies to the facts of the case and be able to discuss it with the judges with eloquence and sharp wit. Thus, preparing for an appellate argument is very different from preparing for trial. Indeed, many appellate judges have expressed frustration with attorneys who treat an appeal as just another court hearing. Even the most gifted trial lawyers may not appreciate that appeals demand an entirely different approach than trials.

 

Appellate Lawyers are Knowledgeable on the Relevant Procedural Rules

The appellate process is different from the trial process. Mounting an appeal is a multi-step process, consisting of:

  • Timely filing a Notice of Appeal or Notice of Discretionary Review;

  • Compiling and scrutinizing the record for potential appellate issues;

  • Researching and writing the appellate brief; and

  • Preparing for oral argument, if necessary.

To bring an appeal, a practitioner must be well-versed in the local rules of appellate procedure.  There are important deadlines and very specific requirements for appellate filings, which can be fatal to an appeal if not followed.  Experienced appellate attorneys have been through what is often a lengthy process many times, and can walk clients through the various steps and answer any questions they have along the way.  A successful appeal also requires knowledge of:

  • The relevant standard of review on appeal;

  • Appellate law, both procedural and substantive; and

  • Backgrounds and personalities of the appellate judges who will hear the case, including how they have ruled on cases similar to yours and whether the court is a “hot bench” that will pepper counsel with questions.

Experienced appellate attorneys also keep up on changes to the rules of appellate procedure and closely examine the written opinions of the appellate judges, learning their tendencies and preferences. Trial attorneys can often be “out lawyered” by experienced appellate practitioners who have near-rote knowledge of the appellate rules and the habits of the appellate judges.

 
Many busy trial lawyers lack the time and patience for the thoughtful reflection and deliberate, meticulous analysis of the law required to develop a compelling appellate argument.
 
 

Trial Lawyers are Busy

A successful appellate attorney is a highly-skilled brief writer who is able to distill the thousands of pages of trial transcripts - plus exhibits - into a single, highly persuasive document. Many busy trial lawyers lack the time and patience for the thoughtful reflection and deliberate, meticulous analysis of the law required to develop a compelling appellate argument.

Bringing in appellate counsel to handle your appeal will serve your client well. You will be able to do what you do best as a trial lawyer, while we can do what we do best as appellate advocates. Of course your insight from the trial is invaluable, so appellate attorneys expect to work with you to identify potential errors and keep you involved in the appellate process as much or as little as you want to be. At the end of the day they are your clients, and we are always mindful of that.

How I Can Help You

If these reasons trial lawyers should not do their own appeals have made you think twice about handling an appeal on your own, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an appeal following a loss at trial or on a dispositive motion.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

The Importance of Storytelling in Appellate Advocacy

The ability to narrate a compelling story is a useful skill in law, just as it is in business. While it has long been recognized, particularly in the litigation space, that the best lawyers are great storytellers, over the past decade Legal Storytelling has made its way into law school curricula and has been the subject of academic conferences in the U.S. and abroad. Beginning in 2007, a movement known as “Applied Legal Storytelling” was launched when a group of legal academics from around the world gathered in London to discuss the uses of storytelling in the law. While most trial lawyers would characterize themselves as storytellers, the importance of storytelling in appellate advocacy cannot be overstated. From drafting a persuasive brief to making a strong presentation at oral argument, narrative elements - including character, setting, theme, and plot - are key to the success of an appellate practitioner. After all, effective storytelling goes hand in hand with persuasion.

Appellate Briefs Should Include Both Logic and Story

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Fundamentally speaking, a lawyer’s job is to tell a story; the client’s story. Whether in the setting of a trial, a contract negotiation, preparation of a will, or an appeal, the elements of storytelling come into play. As with any good story, there are compelling characters, an interesting plot, and central themes. There is conflict and ultimately a requested resolution - the client’s “happy ending.”

The goal of any appeal is to convince the court that one side of the story is the right one. Most litigation comes down to a “battle of the narratives,” with the best “story” winning. Thus, in addition to setting forth a logical analysis of the law, an appellate brief should also tell a story. Narrative elements such as setting, character, and theme should be woven into both the factual presentation and the legal argument. The statement of facts should read like a good story, with the setting and characters being introduced and the conflict unfolding. Quotes and testimony excerpts should be included, so the parties to the case and the witnesses can speak for themselves, much like compelling dialogue in a screenplay. The legal setting, meaning the legal and regulatory framework at issue, should be methodically laid out. The plot develops through the legal argument, with the ending of the story - the client’s requested resolution of the case - coming as no surprise. In other words, if the appellate attorney has told a good story, supported by logical legal analysis, the court should know exactly what the client is asking for and why.

Legal briefs have a reputation for being dry, even boring. Employing storytelling techniques will bring an appeal to life. Dramatic literary concepts such as exposition, rising and falling action, climax, and denouement can bring life to an otherwise dull set of facts. Furthermore, an appellate attorney who tells a compelling and believable story, well supported by legal authority, invariably gains credibility with the judges hearing the case.

 

Like a Good Story, an Appeal Should Have a Central Theme

The judges deciding the appeal will want to know, in the clearest terms, what the case is about. With that in mind, a successful appellate brief identifies and enunciates the narrative at the heart of the case as early as possible. Once the theme of the case is set forth, the story is able to unfold in a more logical and coherent way. While the plot (the legal argument) may twist and turn, the case always comes back to its central theme. Moreover, having a clear focus as the story is being told makes it all the more compelling to hear, and less prone to distraction, which, as anyone who has suffered through a meandering tale with no apparent point can attest to, can ruin a good story. The same is true of an appellate brief or oral argument that lacks a central theme or focus. Most judges prefer an appellate brief that is written as “an essay with a clear train of thought” over a brief written as “a repository of all the information that a curious judge might want to know about.” (Garner, Judges on Briefing: A National Survey, 8 Scribes J. Leg. Writing 1 (2002)).

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Applying storytelling techniques to appellate practice involves looking at the big picture of the case and identifying an overarching theme, then weaving that theme throughout the brief, in the factual summary, as well as the legal argument. This is a valuable exercise for any appellate practitioner, as a story with a clear theme, in which everything that happens relates back to the theme, makes for a compelling read.

 

The Human Aspects of a Controversy Should Not be Forgotten

All legal disputes involve some sort of human conflict. While appellate judges do not want to feel emotionally persuaded or manipulated, they do want to hear the client’s story. More important, appellate advocates serve their clients well when they give the judges a reason, on a human level, to decide cases in their favor. Where appropriate, presenting an emotional appeal, well grounded in law and logic, is the best way to capture the attention of appellate judges. Subtly portraying the client as the protagonist of the story, and the opposing party as the antagonist, is another way to engender sympathy using storytelling techniques.

The clients themselves should be as much a part of the story as the legal analysis. The reader (the court) wants to know how the conflict arose and how it can be, or should be, resolved. Approaching an appellate brief as a story about people (whether individual or corporate), rather than solely as a piece of technical writing, is sure to make it more interesting to its audience, and therefore, more persuasive. A study done by law professor Kenneth D. Chestek, a frequent writer on the subject of legal storytelling, concluded that “stories are indeed persuasive to appellate judges.” (Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, Journal of the Association of Legal Writing Directors, Vol 7, No. 1 (2010)).

 
An appellate brief that tells a story is sure to resonate with the court on both an intellectual and an emotional level.
 
 

Verbosity Can Kill a Good Appellate Story

As is the case with storytellers, some lawyers fall into the trap of saying too much. With effective storytelling, it is the quality, not the quantity of words, that counts. Often, less is more. While the temptation on appeal may be to overinclude facts and to present every possible argument, regardless of its strength, material that is unrelated to the story being told will only serve to distract the reader. Indeed, a skilled appellate lawyer should be able to distill the voluminous record down to a concise presentation that ends well short of the court’s page limitations.

An appellate brief that tells a story, using narrative techniques such as theme, character, setting, and plot, to present the facts and apply the relevant legal framework, is sure to resonate with the court on both an intellectual and an emotional level. In addition to being a powerful tool of persuasion, storytelling in appellate advocacy brings a level of humanity and authenticity into the legal process, which in the long run is certainly a worthwhile goal.

Let An Appellate Attorney Tell Your Client’s Story

If you are contemplating an appeal following a loss at trial or on a dispositive motion, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

Five Reasons to Hire an Appellate Attorney

Following a loss at trial, the first question a client is likely to ask is “can we appeal?” Answering that question requires a careful analysis of both the facts of the case and the relevant law, as well as an understanding of the procedural requirements for bringing an appeal in the client’s jurisdiction. Knowledge of the particular appellate court and its judges should also be brought to bear on the decision whether an appeal is likely to succeed. While some trial lawyers may be tempted to handle the client’s appeal themselves, there are many reasons to hire an appellate attorney to prepare your appeal. Here are my Top Five.

Appellate Lawyers and Trial Lawyers Have Different Skill Sets

While trial attorneys and appellate practitioners share many of the same attributes — they are inquisitive, organized and detail-oriented, and are good communicators and problem solvers — the skills needed for a successful appeal are very different from those required for a trial. A trial involves questioning witnesses, introducing evidence, and arguing the case to the fact finder, whether it be a jury or a judge. Trial lawyers must be skilled at cross-examining witnesses and adept at making complex facts seem simple, especially in front of a lay jury. Trials are mostly about facts, and the job of a trial lawyer is to convince the jury or judge (in the case of a bench trial) that his or her version of the facts is the right one.

 
Appellate brief writing is a specific skill in which an often voluminous trial record must be distilled down to a concise presentation.
 

An appeal is mostly about how the law was applied to the facts, and involves an entirely different process. The trial record must be carefully reviewed and analyzed for errors. The primary job of an appellate attorney is to prepare a comprehensive brief, setting forth a persuasive legal argument, well-supported by case law and the applicable statutory or regulatory framework. Most appeals are won or lost “on the briefs,” so an appellate lawyer must be, first and foremost, a skilled writer. By contrast, few trial lawyers are likely to attribute their success at trial to their writing ability. Furthermore, appellate brief writing is a specific skill in which an often voluminous trial record must be distilled down to a concise presentation.

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Unlike trial, the focus on appeal shifts from developing and presenting facts to:

  • Mastering the record;

  • Researching legal principles, both procedural and substantive;

  • Understanding subtle legal distinctions and emerging legal trends;

  • Exploring creative analogies; and

  • Guiding policy considerations to shape or change law.

Because appellate practice and trial practice require different skills, you should consider hiring an appellate attorney to handle your appeal.

Appellate Lawyers Bring Fresh Perspective to a Case

If your case has reached the stage where you are considering an appeal, chances are you have been eating, breathing, and sleeping the case for many months or even years. As a result, you may have “tunnel vision” and the best thing you can do for your client is to bring in a fresh set of eyes. Trial lawyers approach their cases a certain way. They develop and communicate a core theory to the fact-finder. This makes for a strong case, but invariably results in other potential theories or issues being missed or given little attention. This can be problematic for a trial attorney on appeal, because the judges reviewing the case may be more interested in an entirely different theory than what was relied on at trial. The trial attorney may be unprepared to address the “new” theory, having ignored it at trial.

Appellate lawyers bring a new perspective to a case, one informed by experience searching the trial record for any and all potential errors or issues to appeal. They are likely to see things in the record that trial attorneys are unable to see because they are too close to or too vested in the case, and, unlike experienced appellate attorneys, may not even know what to look for in analyzing a record. What is more, your client will likely receive a more objective assessment of the merits of an appeal from an appellate attorney who has not lived through the case like you have.

Trial Lawyers and Appellate Lawyers Have Different Audiences

Arguing a case before a jury is very different from arguing a case before a panel of appellate judges. Arguments that might persuade a lay jury have little relevance in an appellate court. Rather than arguing factual matters and credibility determinations, as is the case during trial, appellate advocacy involves presenting specific legal arguments concerning rulings made by the trial judge, the jury instructions, and other questions of law. The outcome of an appeal will be a determination as to whether the law was applied correctly during trial or in a dispositive motion.

Because appellate courts focus on questions of law, not on questions of fact like the trial courts, the arguments an appellate attorney presents in the brief, and in oral argument where permitted, will be very different than those made during trial. During oral argument before a panel of judges, appellate attorneys are often called open to address hypotheticals, distinguish cases, respond to intricate statutory or contract construction inquires, and discuss broad public policy issues. Sometimes judges ask questions that seem out of left field. Preparing for an appellate argument is very different from preparing for trial. No one asks questions during your opening arguments or your summations.

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Trial Lawyers are Busy

Most trial attorneys have busy schedules, often going from one trial to the next, with court appearances, depositions, discovery, client meetings and travel scheduled in between. This can leave little time for the thoughtful reflection, exhaustive research, and precise, persuasive writing that effective appellate representation demands. Mounting an appeal is a multi-step process, comprised of:

  • Timely filing a Notice of Appeal or Notice of Discretionary Review;

  • Compiling and scrutinizing the record for potential appellate issues;

  • Researching and writing the appellate brief; and

  • Preparing for oral argument, if necessary.

Bringing in appellate counsel to handle your appeal will serve your client well. You will be able to do what you do best as a trial lawyer, while we can do what we do best as appellate counsel. Of course your insight from the trial is invaluable, so appellate attorneys expect to work with you to identify potential errors, and keep you involved in the appellate process as much or as little as you want to be. At the end of the day they are your clients, and we are always mindful of that.

Appellate Attorneys are Familiar with Appellate Courts and Knowledgeable on Appellate Law

To bring an appeal, a practitioner must be well-versed in the local rules of appellate procedure. There are important deadlines and specific requirements for appellate filings, that can be fatal to an appeal if missed. Experienced appellate attorneys have been through what is often a lengthy process many times, and can walk your client through the various steps of an appeal and answer any questions they have along the way. A successful appeal also requires knowledge of:

  • The relevant standard of review on appeal;

  • Appellate law, both procedural and substantive; and

  • Backgrounds and personalities of the appellate judges who will hear the case, including how they have ruled on cases similar to yours and whether the court is a “hot bench” that will pepper counsel with questions.

How i Can Help You

If these reasons to hire an appellate attorney have made you think twice about handling an appeal on your own, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you if you are contemplating an appeal following a loss at trial or on a dispositive motion.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.