WHY HIRE AN APPELLATE SPECIALIST?

  Appellate specialists have the necessary skills and knowledge.

Appellate work is different than trial work. It requires a unique set of skills and special knowledge. Experienced appellate specialists have honed these skills and acquired this knowledge.

Appellate cases are primarily decided on the briefs. Indeed, the California appellate courts draft their opinions before oral argument and rarely change the result after oral argument. Experienced appellate lawyers know how to draft the kind of briefs that get the best results in the appellate courts.

As a California Court of Appeal has said: “Appellate work is most assuredly not the recycling of trial level points and authorities,” but requires “rigorous original work in its own right.” (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408, 410.) An effective appellate brief, whether for an appellant or respondent, requires in-depth research, creative and critical analysis, and proven writing ability. Experienced appellate lawyers have learned how to do this research and analysis and how to write clearly, concisely and persuasively.

  Appellate specialists understand how appellate courts operate.

Experienced appellate specialists can write effective briefs—and can effectively engage appellate courts at oral argument—because they know how appellate judges think. They understand the distinct issues raised by appeals, like the critical standard of review and the crucial concept of prejudicial error. And they know how to identify and present the issues which have the most chance of success in the appellate court.

Experienced appellate lawyers also know and understand the often-confusing appellate procedures and rules. Although the briefs and argument may be eloquent, an appeal can fail if it does not comply with the rules. For example, a brilliant brief cannot save an appeal that was filed late or that was brought from an unappealable order.

Moreover, an experienced appellate lawyer knows how to prepare the kind of record needed to succeed on an appeal. Appellate courts rely solely on the record from the trial court. Just as an appeal can fail if it does not comply with certain rules, it can fail if the record is inadequate no matter how blatant the trial court’s error or how eloquent the briefs and argument may be.

  Appellate specialists have the right perspective on cases.

Appellate specialists see cases as the appellate courts see them--based on the record. And, like appellate courts, appellate lawyers view cases with detachment. By way of contrast, trial lawyers may perceive their cases based on their intimate knowledge of the facts and their empathetic understanding of their clients’ situation. They also may have persuaded themselves that the facts and the law are on their clients’ side. Even the best trial lawyers may not see gaps in the evidence or flaws in the legal arguments that appellate lawyers, with their fresh and detached perspective, readily see. As a California Court of Appeal has said, because attorneys who prosecute their own appeals may have “tunnel vision” or may have become so “convinced of the merits of their cause” that they “lose objectivity,” trial attorneys “would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450.)

  Appellate specialists can assist both respondents and appellants.

An appellate specialist’s services can be valuable for trial counsel whether their clients are appellants or respondents. Trial counsel may think that, because they won in the trial court, they will win on appeal. But tunnel vision and loss of objectivity can afflict trial counsel whether they won or lost in the trial court. And the same skills, knowledge, understanding and perspective of an experienced appellate specialist that can win a reversal for an appellant can preserve a victory for the respondent.

  Appellate specialists can provide many services.

In addition to handling appeals or writ petitions as lead or sole counsel, appellate specialists can provide various valuable services in both the trial and appellate courts. The four examples below provide some idea of the variety and value of these services.

First, appellate specialists can help trial counsel decide whether to bring an appeal or seek an appellate writ and can provide a “second opinion” for clients. Because an experienced appellate lawyer knows how appellate judges think and sees cases as appellate courts see them, he or she can provide an expert assessment of the chances of succeeding on appeal or of obtaining an appellate writ.

Second, appellate specialists can advise trial counsel when and how to appeal or seek a writ after an adverse trial court decision or order. Experienced appellate specialists know which trial court decisions and orders are appealable and which can be reviewed only through a writ petition. They also know the rules that must be followed to perfect an appeal or obtain an appellate writ, including the important rules on designating the record and the crucial time limits for appealing or petitioning for a writ. If the record is not properly designated, the chances of success may be compromised, and, if the time limits are not met, any chance of appellate review will be lost.

Third, without acting as counsel of record, appellate specialists can assist trial counsel with their appeals. An experienced appellate specialist can review the record and make suggestions for the issues to address and the arguments to make in a brief. An appellate specialist can also review and edit a draft brief or simply make suggestions for improving it. Assistance with briefing can be particularly helpful for respondents who file only one brief and, thus, have only one chance to communicate to the appellate court before oral argument.

Fourth, appellate specialists can assist trial counsel in the trial courts before and after a trial and judgment. Experienced appellate specialists know how to frame issues in the trial court, how to preserve the issues for possible appellate review, and how to ensure the best possible record on appeal.  Appellate specialists are also uniquely equipped to assist with dispositive motions, like demurrers and motions for summary judgment, that may obviate the need for a trial.. After trial, appellate specialists know how to secure statements of decision and judgments that can improve the loser’s chance of getting a reversal or the winner’s chance of getting an affirmance.  Moreover, appellate specialists understand the various post-trial motions (like motions for a new trial or for reconsideration) and know how these motions can improve the chances on appeal. They also know how these motions affect the timing of an appeal and whether the rulings on the motions can be appealed.

In short, trial counsel and their clients would be well served by retaining an expert appellate specialist—to do as much or as little as is wanted or needed.