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?