GMSR: Choosing Appellate Counsel

What to look for in choosing appellate counsel:

Appellate Experience

Appeals involve a different set of rules than trial court litigation and a different mind-set. The most successful appellate advocates are those who concentrate on appeals. Someone who handles a few appeals in the midst of trying lots of cases is not the same as someone who has handled scores of appeals. Appeals involve more than just having different judges decide the same issues that were decided at trial. Many rules unique to the appellate courts color how appellate judges must consider and decide the case.

Appellate Reputation

Like any other kind of advocacy, the currency of successful appellate advocacy is credibility, but with a major difference. In the trial court, in any given case a lawyer has multiple opportunities to establish credibility with a judge who may be unfamiliar with that lawyer or the lawyer's firm. Not so on appeal, where the briefs are the lawyer's main contact with the court. Credibility comes from one source – scrupulously accurate work over the course of a career. A firm or lawyer with an established reputation for that kind of work has an advantage.

Independence and Objectivity

On appeal, the successful issues may be very different from those that were the focus at trial, just as the issues that may be the focus at trial are often different from those in the forefront during discovery. Appellate lawyers should to be able to view the case with a new and fresh perspective, neither hindered by trial counsel's approach nor beholden to any need to justify trial counsel's tactical decisions. They must be able to be fully in charge of the appellate phase of the case.

Critical Thinking

The appellate lawyer must be able to discriminate between arguments that are central to prevailing on appeal and those that are tangential. This often means the ability to make tough decisions to reject arguments that are merely plausible, in favor of those handful of arguments (no more) that are most likely to prevail. More than in other areas of the law, appellate lawyers must have top-notch legal minds. They should be among the best and the brightest.

Ability to Communicate with Generalists

Appellate jurists are extremely busy and are necessarily generalists in the law. Lawyers who are highly experienced in a particular substantive area may be helpful in an appeal, but often it will be more important to have an experienced appellate advocate who can translate a technical or arcane legal theory into language that generalist judges can readily understand.

Creativity

Putting together a successful appeal is a creative process. Good appellate advocates do not ignore the hurdles in their case. They find creative ways to address those issues and explain why they really are not problems. That takes an ability not only to develop unconventional approaches, but also to see the problems with one's own arguments. And, the ability to come up with creative approaches is enhanced when counsel has a breadth of experience to draw upon. Other areas of the law can provide important analogies, both for creative solutions and potential pitfalls.

Written Persuasiveness

Most appellate judges will attest to the fact that the briefs are by far the most important factor in deciding appeals. The ability to write persuasively and cogently is critical. Writing for an appellate court is a special skill – particularly for the appellant, who is addressing an institutionally skeptical audience. The writer needs to get to the point and grapple cleanly and efficiently with the central intellectual issues. Briefs are neither law review article nor jury arguments. And there is a difference between stridency and the ability to persuade.

Collegiality

A quality appellate advocate needs to have a strong point of view, but also needs to be able to work with others and see other potential viewpoints. A good working relationship with trial counsel is almost invariably helpful. While the appellate arguments must rely entirely on what is in the record, trial counsel often have important insights – among other things, because they know what isn't in the record and what matters to the client. Appellate counsel should be not only willing but eager to collaborate with them.

Appropriate Staffing

An appeal addresses the legal essence of a case. It is not something to be sloughed off on inexperienced lawyers. There must be direct, hands-on involvement by senior lawyers. Brainstorming with creative individuals can be helpful throughout the appellate process, but the task of reading the record and drafting the briefs should be limited to a few. A brief written by committee usually reads that way and is rarely as persuasive as one that speaks with the voice of a single skilled advocate. At the same time, almost every brief can be improved by substantial, critical editing by others. Generally speaking, the appropriate staffing for an appeal is a team led by a senior appellate lawyer, with no more than one or two others regularly involved.

The Requisite Work Schedule

Appellate brief-writing cannot be squeezed in between other assignments, in half-hour chunks of time stolen from the press of other demands. It requires long, relatively uninterrupted blocks of time when counsel can focus on the particular issues and on drafting. Just as the minute-by-minute demands on in-house counsel do not permit them to perform many of the functions that litigators perform, a busy litigator's schedule generally does not provide the blocks of time necessary for thoughtful preparation of a well-written brief. Nor can a sophisticated brief be turned around in just a couple of weeks. A good brief in a complex case may well take several months, and many rounds of drafts, to prepare.

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