Even appellate attorneys need a break.

Since I started writing this blog, I have tried to offer trial attorneys suggestions on how they might protect their cases in the event of an appeal. Thinking and writing are really exhausting activities! Then the Holiday season started and I noticed that my enthusiasm dimmed as each new film was released for my consideration (as well as that of the Academy). Social events took priority and I thought it was more important that I remind my friends and family of how important they are to me. I also noticed that others were doing the same thing. Somehow work slipped to the back burner and no one seemed to be interested in lively exchanges about the trend in punitive damages or the latest legislation dealing with arbitrations and class actions.

After giving it considerable thought, it seemed to me that the most prudent thing to do was to stop thinking during this Holiday season and enjoy life. For those of you who have the opportunity, don't miss No Country for Old Men and Sweeney Todd (avert your eyes when Sweeney starts to shave his customers). Buy your loved ones plenty of presents but also remember to give generously of your time. Give a few bucks to your favorite charity and the homeless person on the corner. Stop thinking about the things you have to do at the office and immerse yourself in the Holiday season.

I haven't forgotten you. I just need a break to recharge my brain. HAPPY HOLIDAYS!

Don't recycle your post-trial motions into appellate briefs.

Because courts of appeal are not bound by the decisions of other appellate courts, “appellate court precedent is open for reexamination and critical analysis. Along the same lines, appellate counsel must necessarily be more acutely aware of how a given case fits within the overall framework of a given area of law, so as to be able to anticipate whether any resulting opinion will be published, and what effect counsel’s position will have on the common law as it is continuously developed.” (Id. at p. 409.)

The court in In re Marriage of Shaban (2001) 88 Cal.App.4^th 398, concluded:

“The upshot of these considerations is that appellate 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.”

(Id. at p. 410.)

If I am retained to represent an appellant, I am reluctant to use a work product that has failed to persuade at the trial level. Whatever the trial attorney did below was not successful, so why should I want to repeat those same mistakes or take the same approach?

If, on the other hand, I am called on to represent the respondent, I would much prefer to make a winning argument in a different manner rather than relying on paperwork that will be reviewed during the appellate process. Why not take two opportunities to persuade rather than recycling a single approach?

The role of the appellate attorney is different from that of the trial attorney.

The appellate and trial attorneys have different jobs to do. The trial attorney must present the case to a trier of fact to determine questions of fact and must satisfy a legal burden of proof in their presentation of the evidence. The appellate attorney is looking for prejudicial error and also asks the appellate court to decide questions of law. Of course, both must be persuasive in their presentations.

One of the major criticisms I hear from appellate court justices is that trial attorneys who handle their own appeals merely recycle their trial briefs or motions presented below. To compound the problem, these same attorneys appear for oral argument and reargue the evidence as if they were addressing a jury. In re Marriage of Shaban (2001) 88 Cal.App.4th 398, the court illustrates this problem:

“Appellate work is most assuredly not the recycling of trial level points and authorities. Of course, the orientation of trial work and appellate work is obviously different . . . , but that is only the beginning of the differences that come immediately to mind.

For better or worse, appellate briefs receive greater judicial scrutiny than trial level points and authorities, because three judges (or maybe seven) will read them, not just one judge. The judges will also work under comparatively less time pressure, and will therefore be able to study the attorney’s ‘work product’ more closely. They will also have more staff (there are fewer research attorneys per judge at the trial level) to help them identify errors in counsel’s reasoning, misstatements of law and miscitations of authority, and to do original research to uncover ideas and authorities that counsel may have missed, or decided not to bring to the court’s attention.”

(Id. at pp. 408-409.)

I know that I am dealing with this type of approach when the trial attorney suggests that my job will be easy because I can just take his or her motion for new trial and insert it into an appellate brief. Failing to tailor the appellate brief to the correct audience – which will be apparent to the court of appeal – will not serve your client’s interests.

How do appellate attorneys fit into the picture?

In my last blog, I talked about how trial attorneys are different from appellate attorneys. Now, let's consider how appellate attorneys are different from trial attorneys:

Appellate attorneys tend to work far from the glare of the courtroom. Except for the creative flair they impart to their briefs (or even at oral argument), winning or losing an appeal is not dependent on the attorney's charisma. The appellate attorney is "appealing" to a different audience, one that might not be so easily swayed by emotional pleas. (One attorney I know claims that appellate attorneys are the intellectuals or "eggheads" of the legal profession.)

Even though appellate attorneys can be creative in fashioning their briefs, they are limited to creating a story or legal argument based on an existing record. They are dependent on (or stuck with) the record created by the trial attorney. At the appellate level, the written briefs are much more important than the eventual oral argument. In fact, by the time the attorneys appear for oral argument, the justices have been reviewing the written briefs for months. Some justices have admitted that oral argument will result in a change of their opinion less than 5% of the time. (Since you don't know if you fall into that small group, it is never wise to waive oral argument, especially if you are representing the appellant.)

So, in essence, appellate attorneys are usually late to the case while the trial attorney is there from the beginning. Even so, the attorneys must work together. All too often, however, the trial attorney fails to involve an appellate attorney at the trial level and fails to consider the need to create a record that will allow the appellate attorney to make a persuasive argument either in support of or against the findings below.

All attorneys are not alike

To fully understand how trial attorneys can assist in the appellate process, one must appreciate the differences between trial attorneys and appellate practitioners. Why is that helpful? Well, the appellate attorney may become part of the trial team and an understanding of how he or she works may help in communicating and dividing tasks.

Before the trial attorney comes along, there are no transcripts or records. It is up to the trial attorney to create them. The trial attorney must take a naked set of facts presented by the client and attempt to weave them into a coherent story. This story must be persuasive to a jury or the court. The trial attorney's work - whether taking depositions, appearing for motions or trying a case - is done in a public forum. He or she may be more concerned with the big picture, i.e., how an accumulation of those facts may affect the jury or judge. Trial attorneys interact constantly with people, and their job, to a large extent, is dependent on the spoken word.

Trial attorneys tend to be risk-takers, especially if they are hired on a contingency fee basis. They are willing to take cases, knowing there is a possibility they will lose and not get paid (not to mention the expenditure of costs on the client's behalf). A case may rise or fall on a jury or the court's impressions of the personalities of the trial attorneys and their clients.

In the next post, we'll take a look at appellate attorneys.