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.