Leah Ward Sears
Cherie Phears O'Reilly
In my many years on the Supreme Court of Georgia, I found that appeals can be deathtraps for inexperienced lawyers. That’s just one of the many reasons I believe that today many sophisticated clients—and trial lawyers—are turning to appellate specialists to assist them with their cases.
First off, it’s important to note that specialized appellate lawyers aren’t there to steal your client. They are hired for the express purpose of doing what they do best: winning appellate cases. Whether hired to serve as counsel of record or as consultants to assist with the preparation of briefs and argument, lawyers are finding the expertise of specialized appellate counsel to be an invaluable asset at every stage of litigation.
In fact, the mere presence of specialized appellate counsel at trial often aids in the settlement process by sending the message to opposing counsel that you are fully prepared to prosecute or defend an appeal. Additionally, during the pre-trial process and at trial, a specialized appellate lawyer can assist with preserving issues for appeal, developing the evidentiary record, and drafting jury instructions—all matters that can have a large impact on an appeal. Immediately after the trial of a case, when crucial decisions are being made regarding post-trial motions and filing the appeal, the timely input of a specialized appellate lawyer is critical. And, of course, on appeal, appellate counsel’s expertise in appellate procedure, standards of review, and persuasive written and oral advocacy is valuable beyond measure. In fact, for the wiser party this expertise is a necessity and can, I have found, increase the likelihood of a successful outcome.
The recognition and importance of appellate litigation as a specialized practice area is reflected in studies analyzing the growth of the appellate bar in recent years. Appellate judges also recognize that appellate and trial litigation are wholly distinct forms of advocacy requiring very different legal skills. “Appellate advocacy,” as federal district court Judge Laurence Silberman once stated, “is, in essence, a business for legal intellectuals,” and “a specialty all to itself.” It involves applying the law to the facts in the trial record and analyzing the policy implications and precedential effect of the appeal. Judge Kenneth Yegan of the California Courts of Appeal wrote that trial counsel handling an appeal often experience “tunnel vision” that causes them to lose sight of the big picture and, consequently, impedes their ability to effectively advocate for their clients. He suggested that counsel contemplating an appeal “would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.”
I, too, came to believe, when I was on the bench, that appellate specialists can provide a much-needed, fresh, objective perspective on an appeal. This is particularly true when such a specialist is hired after trial because these experts are in a unique position to view the evidentiary record for the first time, just as the appellate court will do when hearing the appeal.
The specialized appellate lawyer is also better equipped to provide clients with a realistic assessment of post-trial litigation options through this review of the record, to determine the feasibility of post-trial relief, and to analyze potential issues and outcomes on appeal. Furthermore, as a practical matter, an appellate lawyer can be useful when assessing and explaining why some of the trial issues cannot or should not be raised on appeal. And, in so doing, such a lawyer can advise against the filing of frivolous appeals and help her clients better determine whether post-trial settlement, or prosecution or defense of the appeal, should be pursued at all.
Additionally, appellate lawyers, unlike many trial lawyers, know better that appellate courts—unlike trial courts—are more concerned with policy and the overall development of the law. These lawyers also better understand that when rendering decisions, appellate courts consider not only the case before them, but also the other cases on their dockets, as well as the future of the law. That’s why when preparing a case for appeal, good appellate lawyers tailor their arguments to an audience of judges who they know have a specific, somewhat limited, role in the law-making process.
In short, specialized appellate lawyers can play a crucial role at the trial and appellate levels, and their unique perspectives and specialized advocacy skills make them an invaluable asset to any litigation team. Clients and trial lawyers alike should consider retaining specialized appellate counsel, either as counsel of record or as a consultant, for their next trial and/or appeal. It is most important to remember that a specialized appellate lawyer has been trained for these types of cases and can present complex facts in briefs and at oral argument in a manner that is comprehensible to appellate judges in a way that a less specialized lawyer may ignore, overlook, or most likely, have just not been trained to express.
Leah Ward Sears is a partner in Schiff Hardin’s Atlanta office, where she is the leader of the firm’s national appellate client service team. She is also a former Chief Justice of the Supreme Court of Georgia. Cherie Phears O’Reilly is an associate in Schiff Hardin’s Atlanta office, where she is in the general litigation practice group.
