Trial and appeal – different worlds
Trial lawyers use a combination of investigation, discovery, tactics and personality to convince a judge or jury to accept their clients' version of the facts. Legal issues and written advocacy, though important, usually take second place to the presentation of evidence.
The entry of judgment changes everything. Once the judge and jury have gone home, everything the trial lawyer did – or failed to do – is fixed and permanent in the record. There is no going back to ask the forgotten question or to make the overlooked objection. It is too late to argue that one witness is more credible than another. A panel of appellate judges will decide the case in the solitude of their chambers. They will almost always decide the case on the strength of written arguments – in fact, in some situations they will not hear oral argument. And they will usually apply completely different standards than the trial court did.
Appellate lawyers' special skills
A fresh perspective. Unburdened by any personal investment in the approach taken at trial, the appellate lawyer can objectively evaluate whether the arguments that won or lost at trial are likely to have a different impact in the appellate court. An appellate lawyer also brings a different perspective. Because the factual issues that were so crucial at trial are often not open for re-examination on appeal, the focus must shift to legal and procedural issues. And even the legal issues can take on a different hue as the question moves from "Who is right on these facts?" to "What should the general rule be?"
A deep understanding of the appellate process. Appellate lawyers must have a deep understanding of how the appellate courts work and of the limits of appellate review. They face issues that trial lawyers never need to face: Is the judgment appealable? What standards of review will the court apply? Given these standards, which issues are important and winnable, which are merely arguable, and which are frivolous? Appellate lawyers must also divorce themselves from one of the most crucial issues in any trial – witness credibility – and focus instead on legal issues.
Exceptional written advocacy. Appellate lawyers must also be highly skilled in written advocacy. Although many trial lawyers are excellent writers, legal memoranda rarely decide the outcome of a trial – the evidence is everything. On appeal, the written word is everything.
A different kind of oral advocacy. Appellate judges often comment on how trial lawyers who appear before them fail to understand that they're no longer before a jury. Appellate lawyers understand the difference. They know that appellate judges expect an academic conversation with someone who has a deep understanding of the record and the law and who appreciates how the appellate process works.
Shaping the law. Institutional clients are frequently as much concerned about the overall shape and direction of the law as with the result in a particular case. This is the appellate lawyers' world, because published appellate court opinions not only decide cases, but also define the law. Addressing clients' institutional concerns is central to an effective appellate practice.
Don't take our word for it – ask the courts
Appellate courts are acutely conscious of the differences between trial and appellate lawyers. As one of California's appellate courts said when imposing sanctions for a frivolous appeal:
"[T]rial attorneys who prosecute their own appeals, such as appellant, 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. We suspect that had appellant done so they would have advised him not to pursue this appeal."
Another court emphasized that "[a]ppellate work is most assuredly not the recycling of trial level points and authorities":
(Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450.)
"[A]ppellate 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."
Because the courts know that appellate lawyers speak their language and understand their decision-making process, an experienced appellate lawyer can evoke the courts' trust in a
way that trial counsel rarely can.
(In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408-410.)
It's never too early to call
Because of their special knowledge of what happens to cases on appeal, appellate counsel can play a crucial role while the case is still in the trial court. When it's clear that a case is heading for the appellate courts, that is the time to bring in appellate counsel to work with trial counsel in positioning the case as favorably as possible for the expected appeal.
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