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Why should I hire an Appellate Specialist?

In California an “Appellate Specialist” is more than an attorney who works on appeals in his or her practice. The attorney has taken an passed a rigorous exam over and above the California Bar Exam. The specialist also must have demonstrated a high level of experience in Appellate Law, fulfilled ongoing education requirements and been favorably evaluated by other attorneys and judges familiar with his or her work.

An appeal involves different skills than those necessary for trial. An appeal is decided almost entirely based on the legal arguments presented in written briefs. Top quality research and writing skills are key. A trial attorney may have years of experience questioning witnesses and have a great rapport with jurors, but that same attorney may have limited experience with legal writing. Emotional arguments which may be appropriate in a trial courtroom generally cause appellate justices to merely roll their eyes or even silence the attorney presenting them.

As one court has noted: Once again this court’s patience is sorely tried by an inability or refusal to understand the purpose and rules governing the appellate process. (Lindemann Maschinenfabrik v. American Hoist & Derrick Co., et al. (Fed.Cir. 1990) 895 F.2d 1403, 1405.)

Even if trial counsel has good research and writing skills, a busy trial attorney probably does not have the uninterrupted time to devote to an appeal, which often requires blocks of several days, or even weeks, of time. Trial attorneys sometimes attempt to handle the appeal themselves, but find they have only a couple hours a day between depositions, client meetings, and court appearances to work on the appeal, which often gets relegated to nights and weekends. By focusing on appeals, we are able to devote to each case the necessary time to achieve the best results.

Appeals involve an entirely different set of procedural rules and deadlines which are traps for unwary attorneys, as well as their clients. The time deadline for filing a Notice of Appeal is unforgiving. Writ petitions routinely are denied for procedural reasons alone. If an appellate brief is not presented in the proper format, the Court of Appeal may disregard the arguments completely.

Finally, if you believe it will cost more money to hire a “new” attorney than to have your trial attorney handle the appeal, think again. Because the appeal is based entirely on the “record” rather than personal recollection, whoever is handling the appeal must read the entire record and draft a procedural and factual history based on that record. It is unlikely the trial attorney will take any less time to accomplish this task than a new appellate attorney. Indeed, because trial counsel does not regularly perform these tasks, it may take more time. Therefore, having your trial attorney handle the appeal probably will not result in any cost savings. Indeed, it will probably take trial counsel more hours to complete the briefing than a newly-retained appellate attorney.

Additional considerations for appellants

It is important to have a someone who has not been involved look at your case with a new perspective. Sometimes the trial attorney is “too close” to the matter, believing that some particular point was the most important when, in reality, a different issue is the key. As a party, you may be particularly upset about something the opposing party did or something that happened before the lawsuit started which, while understandable, does not have any particular legal significance. Bringing in someone new who can look at the case from a new angle usually helps.

Also, often either the trial attorney or the client, or both, believe that a witness testified to certain facts or a judge made a particular ruling although that never “got into the record.” They may be recalling deposition testimony which was never read at trial or an “in chambers” discussion which was never reported by the court reporter. However, only what is in the “record” can be used for the appeal. The appellate attorney will focus on the record, not an independent recollection of events.

As for the briefing process itself, we are familiar with the required “standards of review” by which the Court of Appeal examines different types of orders and judgments, as well as “prejudice” arguments. These often are the key to the resolution of the appeal. Retaining an attorney who is familiar with these arcane legal rules generally will result in time savings and, therefore, minimize total costs.

Finally, if you are considering appealing a criminal conviction, there is most likely an conflict of interest if trial counsel handles the appeal. Unlike civil appeals, a criminal defendant has the right to effective assistance of counsel, which may be raised either on direct appeal or in a petition for writ of habeas corpus. Your trial attorney will not be in a position to argue his own ineffectiveness.

Special considerations for respondents

If you won at trial, you may be tempted not to seek out an Appellate Specialist for the Respondent’s Brief. However, there are separate benefits to having an Appellate Specialist represent you in defending your hard-earned judgment. We not only are familiar with the “standard of review” and “prejudice” arguments and can point out where the appellant is advocating based on an incorrect standard, we also are familiar with “waiver” and “forfeiture” doctrines, which can result in an affirmance based on procedure alone. These procedural arguments may be much stronger than the legal ones in support of your position and are especially important if you are opposing a writ petition. You deserve to defend your judgment with the maximum number of “arrows in the quiver,” which only someone who regularly practices in this area can provide.