Consider Us for New Counsel on Appeal

A big question after the loss of a trial is whether you should hire new counsel on appeal. And by "you," we mean the trial lawyer.

In a recent case, our client retained two separate attorneys to handle the defense of a lawsuit. Both of them worked up the case, filing several motions and conducting even more hearings, but they ultimately lost. In fact, the judge not only entered judgment for the plaintiff, he issued an injunction against the client, prohibiting her from filing any additional motions in the case.

The client called our office and retained us to prosecute an appeal. Once we were retained we called up the trial lawyers and asked whether they thought there were any viable issues for appeal. They told us, "No, none." Despite that prophecy, we went to work. After thoroughly reviewing the record, we found three issues viable for appeal, two of which call for a reversal and a judgment rendered for our client.

The case is still pending, but it does show that many times it's helpful to allow a new set of eyes to see the case.

Trial Firm Referrals

Very often trial lawyers advise their clients that they will "go ahead" and handle the appeal of a defeat or defend a successful verdict. Below are several reasons why trial lawyers should consider referring their litigation clients to an appellate lawyer before deciding to handle an appeal themselves.

Keep Your Clients

We are not interested in poaching clients from appellate referrals. Once we receive an appellate referral, we aim to work with trial counsel to properly prosecute the appeal. Once the appellate process is over, we consider our work to be done and expect the client to consult with the referring attorney for any additional legal work.

Appellate Practice is Idiosyncratic

Appellate brief writing has an unusual distinction in the law: More good lawyers do it badly than just about any other aspect of professional practice. (Rubin, Appellate Brief Writing, 8 The Practical Litigator No. 2)

While good trial lawyers are adept at ferreting out information through discovery, examining witnesses and making spontaneous tactical decisions in court, an appellate lawyer must be especially talented in persuasive writing. On appeal, the focus shifts from developing facts to mastering the record, researching legal principles, understanding subtle distinctions and emerging legal trends, exploring creative analogies, and guiding policy considerations that shape the law, and then assembling everything in a concise, persuasively written brief. (Pannill, Appeals: The Classic Guide, 25 Litigation 6, 7 (Winter 1999)).

The arguments for changing lawyers depend on a fundamental proposition: A great trial lawyer and a wonderful appellate advocate rarely exist in the same body. Consider why this is so.

The reason is that the two types of lawyer are different breeds. It is like the difference between bomber pilots and fighter pilots, swimmers and divers. They work in the same kind of place but perform very differently.

Trial lawyers are impassioned and focused on the facts, actors before a silent jury audience, living by their wits, thinking on their feet, selling themselves with sincerity and a warm voice to six or twelve strangers. By contrast, appellate advocates are cooler - laborious rewriters and self-editors who disappear into the law library and delight in reconciling apparently conflicting precedents. Such lawyers are reflective, making up for their lack of showmanship through a love of artful, persuasive language. It is not surprising that such divergent activities often must be done by different people. (Dennis Owens, New Counsel on Appeal?, The Litigation Manual, Special Problems and Appeals at 74).

Appellate Counsel Can Better Avoid Procedural Land Mines

Substantially different procedural rules and deadlines apply on appeal. Not surprisingly, a significant number of appeals are dismissed because counsel was unaware of these special rules and procedures. (See, e.g., Carter v. Carter, 225 S.W.3d 649 (Tex. Civ. App. - El Paso 2006) (no adequate record); Carmona v. Stahely, 2007 Tex. App. LEXIS 7320 (Tex. App. Houston [14th Dist.] September 6, 2007) (untimely appeal).

A New Perspective is Usually Necessary on Appeal

Appellate work is most assuredly not the recycling of trial level points and authorities"; 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, 88 Ca. App. 4th 398, 408, 410 (2001).

By the time a case reaches the appellate court, the lawyer who has been involved in it from its inception usually has fixed views about his theories and presentation. If the same lawyer handles the case on appeal, he or she probably will continue to urge the theories argued - whether successfully or unsuccessfully - in the lower court. A new lawyer [one with appellate experience] taking a fresh look at the case on appeal, however, may view it somewhat differently and use fresh insight to shift the theories and approaches, at least in emphasis. This change in approach may avoid some of the pitfalls that led to a loss in the lower court or strengthen the grounds upon which an affirmance is sought. (Daniel Freedman, Winning on Appeal, The Litigation Manual, Special Problems and Appeals at 154).

Appellate counsel is likely more familiar with what issues and arguments are likely to be most successful on appeal. They may have a better understanding of patterns in appellate decisions and "hot" issues pending in the Supreme Court and intermediate appellate courts. And they often have greater familiarity with characteristics peculiar to different panels of justices, and how decisions are made at the appellate level generally.

Oral Argument is Quite Different from Jury Argument

Oral argument is usually the only opportunity during an appeal for a dialogue between the parties and the justices. An argument that works for a jury is rarely effective in the courts of appeal. As Chief Justice Ronald George of the California Supreme Court has commented: "[E]motional arguments of the type designed to sway a jury generally leave us quite cold, so does the sight of counsel approaching the bench, clutching a script from which counsel does not dare look up." (Sherman, Chief Justice of California (2d Qtr. 1997) Verdict 8, 12).