The Top Five Reasons to Have Separate Appellate Counsel
March 23, 2017
Publications
By Debra P. Fourlas
An appeal is neither a chance to retry a case nor a time to develop new legal theories. A successful appeal depends on careful planning and extensive knowledge of the appellate process, as well as a meritorious legal argument. There are strong reasons to entrust the appeal to separate, experienced appellate counsel rather than to the attorney who tried the case. Here are five of the most important ones.
1. Preservation Is Preparation
Every litigation case needs appellate counsel not just after an appeal is filed, but from the very beginning of the case. The name of the game on appeal is issue preservation: if it wasn’t raised properly in the trial court, the appellate court can’t and won’t consider it. A separate appellate lawyer – one who is not distracted by pleadings, discovery, and other pretrial and trial issues – can focus on assuring that every potential issue for appeal is being raised and preserved at every step along the way. Each legal theory or issue needs to be asserted in a written filing or a transcript, or both, so that the appellate court can verify that the issue has been correctly preserved for appeal. For some issues, merely raising them once in passing is not enough. Appellate counsel is the person who will know how best to preserve them, leaving trial counsel free to concentrate on the best strategy for presenting the evidence and winning at trial. Even the best trial judges make mistakes, and appellate counsel always has his or her eyes on the appellate prize.
2. Fresh Eyes
Errors by trial courts are inevitable. Evidentiary rulings during trial are the judgments of a moment, issued without time to review fully the applicable law. The trial court also makes many pretrial decisions affecting the pleadings, the parties, jurisdiction, venue, discovery, and even pretrial judgments, all of which present opportunities for mistakes. Not all, or even most, of those errors should be appealed, however. Did the error really affect the outcome of the case? If not, then no matter how egregious the error might seem, correcting it on appeal won’t help.
Trial is largely about facts, but on appeal it’s the law that counts. Which legal issues offer the strongest appellate arguments? The law is clearer on some issues than on others. Trial counsel is intimately familiar with every detail of the case, but the very depth of that knowledge can impede counsel’s ability to analyze the possible appeal issues objectively and choose those with the best chance of success. Appellate counsel can see the record from the appellate court’s perspective and analyze it with a level of objectivity that is impossible for the lawyer who tried the case.
3. Brevity Is the Soul of Persuasion
Appellate judges and their law clerks are busy people. In fact, Pennsylvania’s Superior Court is the busiest appellate court in the nation, with each judge shouldering the staggering burden of issuing some 300 written opinions each year. Every extraneous issue – indeed, every extraneous word – in an appellate brief adds to that burden. Further, a brief asserting many errors by the trial court is not more persuasive, but less so. When an appellant asserts too many arguments, appellate judges assume that none of them will have merit. Experienced appellate counsel can choose the most persuasive arguments and present them with brevity and clarity.
4. Waiving Goodbye
The rules of procedure governing appeals are fraught with waiver pitfalls that can get an appeal dismissed without ever being heard on its legal merits. Even if the court doesn’t dismiss the appeal, formal defects are damaging. The rules exist for a reason, generally in order to facilitate appellate review. Most appellate judges have habits and preferences for how they review appellate filings; documents that don’t comply with appellate formatting rules defy the judges’ expectations and impede the review process. A non-conforming brief also signals an inexperienced or careless appellate lawyer and undermines the credibility of the lawyer and his or her arguments.
5. R-E-S-P-E-C-T
Tone and civility are always important in court, but they are especially critical in an appellate brief and argument. Ad hominem attacks and hyperbole in legal arguments are never a good idea, but they are anathema to the appellate process. There may be a place for passion in arguments before a jury, but on appeal, the rule of law and dispassionate legal analysis are the keys to persuasion. Appellate judges demand and assume that counsel will treat each other and the court with courtesy and restraint. Like errors in complying with the appellate rules of procedure, failure to accord that courtesy and restraint will undermine counsel’s credibility with the court. Experienced appellate counsel understands the tone and focus that the judges expect.
