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
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.
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.
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.