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Why and When an Appellate Litigator Should be Hired

Those of us fortunate enough to litigate cases in the appellate courts are often asked if and when trial counsel should turn to us for assistance. We get those questions all the time—particularly from our clients’ in-house counsel and trial attorneys. And it should surprise no one to learn that we usually answer them with a categorical YES followed by an equally emphatic AS EARLY IN THE LITIGATION AS POSSIBLE.

Experience demonstrates that the earlier a skilled appellate lawyer is brought into a case, the greater the likelihood that the client will avoid an unfavorable outcome in the trial court or obtain a favorable one, depending on which side s/he represents. And the same holds true with respect to the likelihood of overturning an unfavorable decision (or preserving a favorable one) after trial, whether through post-judgment motion practice, a special action petition (what is sometimes still called a writ petition), or a direct appeal to the jurisdictionally appropriate state or federal appellate court.

One could write extensively on this subject matter. And many have. But it really is that simple.

A recent Zuber Lawler victory illustrates the point rather well. After having engaged in a five-year legal battle in the trial court, including a preliminary injunction trial, two rounds of summary judgment motions, more than 50 hearings and conferences, a 20-day trial by jury, and fee litigation, trial counsel with another law firm contacted us for help. He reported that the jury had returned a verdict against his clients both as to liability and damages (actual and punitive), the trial judge had awarded the other side their attorneys’ fees, and the deadline for post-judgment motions—the last opportunity to turn things around in the trial court—was approaching rapidly.

Within seven days, working in collaboration with trial counsel, we had five separate post-judgment motions in process. After we identified and called to the trial judge’s attention that the jury had been given the wrong standard of proof by which to evaluate the evidence, our clients were rewarded with an order granting them a new trial and vacating the judgment against them in its entirety. And, after hundreds of pages of briefing and oral argument, we also successfully defended the trial court’s new-trial order in the court of appeals. Appellate attorneys can and do make a difference.

 Although many trial lawyers routinely enlist appellate counsel to assist with their cases—and as sophisticated clients increasingly are insisting that they do so—others have not had the opportunity either to fully consider the matter or to experience working with appellate counsel. These thoughts are addressed to in-house attorneys and trial lawyers who fall into either category. Consider the following sentiments that we have heard expressed ad nauseam:

  1. “I’ll have plenty of time to think about preserving the trial court’s errors for appeal as the action unfolds in the trial court.”
  2. “A court is a court. My years of experience writing motions, presenting oral argument, and trying cases in the trial court makes me eminently qualified to handle the inevitable appeal.”
  3. “I am better suited than a stranger to the case to handle my client’s post-judgment motions and appeal, as I have lived with it for years and understand the law and the record better than anyone else could.”
  4. “The appellate judges who will read my briefs and hear my oral argument will be so moved by my passion and rhetoric that they will find in favor of my client and reverse (or preserve) the judgment.”

If you or your trial lawyer subscribe to one or more of these views, you are not alone. These notions are pervasive. But they are usually wrong.

Contrary to the first commonly-held view, experience has proven that a trial lawyer’s time to think about—let alone take appropriate steps to execute—error preservation strategies while the case is moving forward in the trial court is quite limited. Perhaps the single biggest problem that we encounter when asked to handle post-judgment motions, a special action, or an appeal from a trial court ruling is waiver—that is, the failure on the part of trial counsel to take appropriate steps to preserve one or more issues for appeal. Bringing appellate counsel into the case early to assert appropriate objections and file appropriate motions as the case proceeds relieves trial counsel of a significant burden, allows them to focus on developing the case and conducting the trial itself, and minimizes the risk of waiving the client’s right to raise a critical error on appeal.

The second frequently expressed view is equally flawed. The fact is that trial counsel’s experience in the trial court is not transferable to the appellate court. While the differences between trial and appellate courts are too numerous to treat exhaustively here, one need only consider the issue from the perspective of procedure to begin appreciating the point. A seasoned trial lawyer undoubtedly has spent years acquainting her/himself not only with the procedural rules that govern trial court proceedings, e.g., the Federal Rules of Civil Procedure or the state rules of procedure, but also with the judicial gloss on those rules and the commentary of recognized legal experts. Trial lawyers rely on those rules, cases, and secondary authorities extensively in their practice. They even litigate about them when necessary.

Now ask yourself whether you or your trial attorneys are at least equally conversant in the rules of procedure that apply in the state and federal appellate courts. Let’s assume the case emanates from one of Arizona’s federal or state trial courts, for instance. Is trial counsel conversant in the Federal Rules of Appellate Procedure, the Ninth Circuit Rules, and the Circuit Advisory Committee Notes, or with the Arizona Rules of Civil Appellate Procedure, the Rules of Procedure for Special Actions, or the Rules of the Supreme Court? This is to say nothing of the unwritten rules—the special conventions and informal procedures that are very much a reality of appellate practice.

An appellate lawyer is immersed in the aforementioned appellate rules as well as the ever-evolving decisional law interpreting and applying them. S/he probably has the multivolume treatises devoted exclusively to those rules and decisions sitting nearby because s/he consults them so regularly. The appellate lawyer is conversant in these rules because s/he knows that failing to understand them could be fatal to the client’s cause. One can think of it this way: if the trial court is Canada, then the appellate court is Brazil. One’s knowledge of the terrain in the former will be of little use in traversing the latter.

The third common view does not withstand scrutiny either. However counterintuitive it might seem, the trial lawyer’s knowledge of all that transpired in the case prior to the appeal is more likely to hinder the client’s cause than to advance it. The hallmarks of persuasive appellate advocacy are objectivity and focus. While one’s involvement in the case from day one undoubtedly leaves one more familiar with the record than anyone else, it is equally true that overfamiliarity with the case can fatally impede one’s ability to stay fixed on the record, which is all the tribunal will consider, to select only the issues and arguments likely to persuade an appellate judge, and to present those arguments thoughtfully.

To be sure, an experienced appellate lawyer will spend a great deal of time discussing the case with trial counsel whenever practicable. As the story we related above demonstrates, such collaboration is often a valuable—perhaps even indispensable—way for appellate counsel to become fully acquainted with the relevant legal theories, evidentiary matters, and court rulings. But, generally speaking, that is where the trial lawyer’s role in the appeal should end.

This brings us to the fourth misconception that we encounter a lot—i.e., the notion that the appellate judges will be so moved by trial counsel’s passion and rhetoric that they will do what is right. Although propounding arguments draped in emotion is the trial lawyer’s stock-in-trade, it is counterproductive on appeal. Trial lawyers are taught to express themselves passionately in order to persuade the jury or judge to adopt their client’s position. That’s usually terrific advice. But expressing arguments emotionally to the appellate tribunal will be seen as a sure sign that the lawyer has little faith in the strength of the legal position being advanced. An appellate lawyer is skilled at weaving together a compelling narrative based on her/his review of the trial court record and at expressing the client’s arguments crisply and dispassionately, both in prose and orally. The appellate attorney knows from experience and training that this is what appellate judges expect.

Engaging an attorney experienced in helping trial counsel perfect the theory of the case, understand the nuances of novel and/or complex legal issues, craft jury instructions, prepare and present dispositive motions, and preserve error for appeal will optimize the client’s chances of achieving a favorable outcome in the trial court. And appellate counsel’s familiarity with the unique rules and practices of the appellate forum will significantly enhance the client’s likelihood of success in the appellate court.

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