Why should I hire an appellate specialist to handle my appeal?
It makes sense to hire an appellate specialist because the appellate process is a discrete part of the broader civil-litigation system. It has its own rules, procedures, and norms. Lawyers who specialize in handling appeals are experts in these aspects of appellate practice, improving the chances of prevailing on appeal.
The most important difference between the trial and appellate process is the importance of written advocacy. On the plaintiff’s side, the principal function of legal writing in the trial court is to keep the case alive through the pre-trial process, so that the trial lawyer can win the case at trial. Appeals are different. The outcome of almost every appeal is dictated by the appellate court’s reaction to the appellate briefs. The party with the best briefs often wins.
In addition, oral advocacy in appellate courts is unlike the trial court. Because appellate courts sit in 3-judge panels, the appellate advocate may be peppered with questions from each of the judges—sometimes at once. And the questions posed by appellate judges will often focus on appeal-specific issues, such as the standard of review or whether certain arguments were preserved for appeal.
Because appellate advocacy depends on being able to write persuasive briefs and to respond to the questions posed by appellate judges, appellate specialists tend to have honed these skills in ways that trial lawyers have not.
Simply put, appellate specialists think like appellate judges. As a result, they can often communicate with appellate judges more effectively than trial lawyers, whose skill sets have been developed to succeed at trial.
Hiring an appellate specialist to handle an appeal presents the following advantages:
Familiarity with appellate procedure. Appellate specialists know which orders are appealable and which are not; how to draft a proper notice of appeal; what portions of the trial record to include in the appellate record; and the procedures for designating the appellate record.
Objectivity. An appellate specialist who has not been involved in the case through the trial process will view the appeal in much the same light as the appellate court itself. As the Court of Appeal observed in Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-50, “trial attorneys who prosecute their own appeals, such as appellant, may have ‘tunnel vision.’ Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.”
Relevant skill-set. Appellate specialists will be highly skilled in the tasks that appeals require. They will view the appeal through the same conceptual lens as the appellate court and will therefore have a better sense of which issues are likely to resonate and which should be deemphasized or omitted. Appellate specialists are able to produce persuasive appellate briefs, written in a way that will be trusted by appellate courts. They will also be able to defend the positions taken in that brief during oral argument, a process unlike anything that happens in the trial court.
Time savings for trial counsel. Appeals are time consuming, particularly for lawyers who are not intimately familiar with the appellate process. By allowing an appellate specialist to handle the appeal, the trial lawyer is able to devote the time that the appeal would require to more rewarding pursuits, whether that is his or her trial practice, or having more time available to do things other than work.
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