BLOG VIEW: The old adage cautions against changing horses in mid-stream. So why should a litigant consider hiring a new attorney to handle the appeal? And why should that new attorney be an appellate specialist?
The answer to the first question is that, on appeal, you are no longer crossing the same river, but rather a completely different, deeper and (potentially) more treacherous body of water. One in which the original attorney might be out of his or her depth and unaware of how best to navigate to find the right trail.
The decision to switch is easiest when you are the appellant: For some reason, the original attorney lost the case below. This might be for reasons having nothing to do with the original attorney’s competence, such as bad facts or a bad judge; nonetheless, a fresh perspective might be very useful in deciding where the case veered off course and sank, and whether and how that wreck might best be salvaged. Conversely, the original “horse” might be wearing blinders when it comes to the critical evaluation of why the case was lost.
As for the second question, while any licensed attorney admitted to the appellate court can handle an appeal, an appellate specialist has undergone more rigorous testing, has been recommended by persons familiar with the specialist’s appellate work, has more stringent continuing legal education requirements focused on appeals, and likely has more extensive experience in handling appeals—and, thus, is probably more familiar with the appellate judges who will be deciding the case and any quirks or preferences they might have. In fact, in California, fewer than 350 attorneys are certified appellate specialists.
Appellate specialists can also be useful to assist the unsuccessful litigant and trial counsel before any appeal is filed. For example in deciding whether certain post-trial motions should or must be brought to raise or preserve issues for an appeal, to ensure that a proper record is designated, and a timely and proper appeal notice and case information statement and/or designation of issues (where required by the court) is filed. The appellate specialist can also help determine whether an appeal is in the appellant’s best interests, both from an economic and practical point of view.
Even if you were successful in the court below, though, an appellate specialist is worth considering. The skill sets employed by the trial lawyer and the appellate lawyer are different. The former tends to focus more on investigating and presenting facts and (if the case has survived to trial) is largely dependent on a sometimes lengthy oral presentation to the judge and/or jury.
The latter is primarily concerned with legal issues and, while a relatively short—rarely more than 15 minutes per side–oral argument is often a component (and can sometimes tip the balance), appeals are usually won or lost on the briefs.
While there are definite potential cost and time savings in using the same attorney for the appeal that handled the trial, proper appellate presentation does not consist of simply recycling the arguments raised below; it involves a thorough review of what did and did not work before, fresh research to see what might have been missed and what might have changed since the judgment was issued. Of course, the appellate specialist can also be useful as a consultant and editor even if the trial attorney is the one taking the laboring oar on appeal. Lastly, and often very importantly, an appellate specialist often knows where an amicus curie brief may be helpful and which groups may be interested in weighing in on your side.
So why retain an appellate specialist? It’s just horse sense.
Jonathan Fink is a California certified appellate specialist and a partner with Wright, Finlay & Zak, LLP.