Good trial attorneys spend years developing considerable professional expertise in their courtroom practices. They hone their skills to achieve the best possible result for their clients in a fast-paced, often high-volume environment. Trial attorneys frequently prefer the courtroom and the hands-on nature of trying cases. Straying from the trial setting to conduct appellate litigation may represent a distraction from that attorney’s preferred professional focus.
Many busy attorneys would rather avoid the labyrinth of appellate procedures. These procedures, and the non-intuitive rules that prescribe them, present numerous pitfalls to the attorney who does not regularly conduct appellate litigation. Many of the rules are jurisdictional in nature, so that a single procedural error or missed deadline can result in dismissal of a meritorious appeal. In such a case, the attorney will face the prospect of ethical sanctions, or, perhaps even a claim against his or her professional liability insurance. To the individual appellate litigant, the prospect for success in self-representation can be significantly reduced by the maze of appellate procedural rules.
Unfortunately, despite the best efforts of trial attorneys to address error at trial by making effective objections and pressing the trial court, adverse rulings do occur. Incorrect rulings can negatively the affect the outcome of the trial. Enter the appellate attorney!
Appellate attorneys thrive on what many trial attorneys see as laborious work. The appellate attorney reviews the trial court record, and determines for the client the issue, or issues, which present the best prospects for appellate success. Then, the appellate attorney navigates the rules of appellate procedure to ensure that a meritorious appeal will not suffer a procedural default. They bring to bear their expertise in legal research, writing and editing skills. Their courtroom skills focus on responding knowledgeably and effectively to the intense questioning of appeals court judges. In addition, a good appellate attorney considers, among other things, the following questions:
Does an issue touch upon an emerging trend of appellate law?
Does it present an issue of first impression?
Do any unpublished opinions exist on the issue?
Have the appellate courts in other jurisdictions decided the issue?
Was the alleged error ruled upon with sufficient clarity and otherwise adequately preserved at the trial court level?
How should the issue be drafted and argued to the appellate court to best ensure that it will agree to hear it, or, in some cases, refuse to hear it?
How should the issue be drafted to enhance the potential for a favorable decision?
Because the trial attorney and the appellate advocate focus on somewhat different forensic skills, many trial lawyers refer their appellate cases to those attorneys who thrive on litigating in the appeals courts. This arrangement ensures that the client receives the best possible representation on appeal, and permits the trial lawyer to stay informed about the case, yet remain focused on their passion for trying cases.