You have won or lost a case in the trial court and will continue the fight in an appellate court. As you consider who will handle the appeal, someone--maybe trial counsel himself--is bound to tell you: "Don't change horses in midstream." This venerable adage, which dates back to 1840, was popularized by Abraham Lincoln, explaining why the Republicans renominated him in 1864.
An appeal, however, is quite different from reelection during wartime. Rather than simply another battle, an appeal is more like an entirely new war. As such, it requires a new leader, with different skills. A good trial lawyer's commanding presence, knack for connecting with jurors, and passionate summations will not persuade an appellate court. Having trial counsel handle the appeal may make as much sense as entering a warhorse in a derby race.
Now, more than ever, clients are turning to appellate specialists. In the past decade a U.S. Supreme Court bar has emerged. Clients more often switch to one of a small cadre of experienced advocates who compete for the prize cases of the term. The same holds true in the lower appellate courts, especially when the stakes are high. Clients can readily find lawyers specializing in federal circuit or state supreme court practice. Five states, including California, Texas, and Florida, now certify appellate specialists, and the American Academy of Appellate Lawyers, formed in 1990, has grown to 251 members.
Arthur Andersen LLP turned to appellate expert Maureen Mahoney, of Latham & Watkins, to argue its obstruction of justice conviction to the U.S. Court of Appeals for the Fifth Circuit in October. LePage Inc. won a $68 million antitrust verdict against 3M Company. When it was reversed by a Third Circuit panel early last year, LePage switched from trial counsel to antitrust and appellate specialist Roy Englert, Jr., of Washington, D.C.'s Robbins, Russell, Englert, Orseck & Untereiner. He persuaded the en banc court to reinstate the original verdict.
Deciding who should litigate an appeal means finding the right lawyer for the job. Consider:
Experience in appellate practice. Appellate practice is as much a specialty as trial work or M&A. The best appellate lawyers are well versed in appellate law and tactics and know which arguments will persuade appellate judges. They also have a passion for appellate issues that is apt to make them more convincing to appellate judges. Empirical evidence bears this out. A 1999 study of 285 product liability cases in the Federal Circuit, conducted by three political science professors from the University of Georgia and Roanoke College, concluded that experienced appellate attorneys have a decided advantage over attorneys without appellate experience.
Furthermore, most appellate malpractice suits are lodged against trial attorneys for mishandling appeals, according to Legal Malpractice, an exhaustive treatise by Ronald Mallen of Hinshaw & Culbertson and Jeffrey Smith of Greenberg Traurig. In one notorious example, Fresno, California-based lawyer Thomas Campagne represented fruit growers in lower court proceedings and insisted on handling the oral argument in the Supreme Court, despite his clients' pleas to yield to someone with relevant experience. He gave a weak oral argument, and the decision, written in 1997, went against him 5 to 4. Not only that, Campagne was sued by one of his clients for malpractice.
Excellent writing abilities. Chief Justice William Rehnquist said, "An ability to write clearly has become the most important prerequisite for an American appellate lawyer." Many appeals are decided without oral argument. In most other cases the judges make up their minds after reading the briefs. If a trial lawyer tells you that his brief will not be important because he will win with a powerful oral argument, run the other way.
A great trial lawyer who is not a great writer may attempt to reassure you with the promise that his associate will write the brief. That will not do. The lawyer you choose to handle the appeal should be the primary author of the brief. When he was still in private practice, Rehnquist drafted his own briefs. Your lawyer is no more above this task than a future chief justice.
Excellence at appellate oral argument. A good appellate advocate has different oral skills than a good trial lawyer. Gifted Philadelphia trial lawyer Gerald Litvin admits that he is a fish out of water in an appellate courtroom. Great trial lawyers make convincing jury speeches; the best appellate advocates do not make speeches. They argue, without interruption, in their briefs and use oral argument to have a dialogue with the court. Good appellate advocates are also adept listeners. They attend closely to the judges' concerns and address them in the language that appellate judges use.
Too many trial lawyers lapse into trial court argument when addressing an appellate court. I have watched a good criminal defense lawyer punctuate his impassioned references to his client with gestures toward the counsel table, even though the client, present at trial, was sitting in jail. He lost. Another lawyer tried to object during my oral argument; the presiding judge told him politely but firmly: "We don't do that here." He lost, too. Other trial lawyers pace about and gesture wildly when addressing appellate judges, who are not so moved. Ninth Circuit judge Alex Kozinski advised: "When a lawyer resorts to a jury argument on appeal, you can see the judges sit back and give a big sigh of relief. [That is because] we know that your case doesn't amount to a hill of beans, so we can go back there in the conference room and flush it with an unpublished disposition."
Expertise in a specialized area. Some appeals involve cutting-edge issues in a specialized area. Trial lawyers who regularly handle cases in that area may have expertise, but they also need appellate experience to use that expertise effectively. The best choice in such an instance would be a lawyer with both substantive and appellate expertise. In LePage's en banc argument against 3M, both companies chose new appellate counsel with antitrust and appellate expertise.
Detachment. A good appellate lawyer not only provides a fresh perspective, but also will evaluate your case with critical detachment. Trial lawyers often are too attached to the issues they litigate. Those who lost close, hard-fought discretionary or jury decisions will want to reverse those losses on appeal, even though the standard of review makes success unlikely. Seasoned appellate advocates and experienced in-house lawyers understand that the issues that can be litigated and won on appeal differ from the issues litigated at trial. A dispassionate observer will identify the real appellate issues and argue them appropriately.
Trial counsel's personal involvement also may color his judgment. A lawyer who lost at trial may advocate appealing to show that he did not blow the case, the trial judge did. A lawyer who won at trial may be blind to the grounds for reversal that he created.
Detachment also enables appellate counsel to understand the trial exactly as the appellate judges do, through reading the appellate record. Although the trial lawyer knows more about the trial from hearing the voice of the key witness crack during cross-examination and feeling the electricity of dramatic testimony, that knowledge is irrelevant to the appellate judges, who know only the cold record.
Indeed, the trial lawyer's supposedly superior knowledge can be more of a curse than a blessing. Trial counsel tend to be blinded by their own imperfect memories. Trial lawyers are notorious for remembering events incorrectly. Innumerable associates have scoured the record for a point trial counsel is certain was made--only to discover that the point was not made on the record or is not that good on paper. Appellate counsel has the advantage of seeing what appellate judges see: only what is in the record.
Cost. Concerns about cost lead many clients to stick with trial counsel. Clients believe hiring new appellate counsel will cost much more because that lawyer must devote time to learning the case. The cost difference may, however, be negligible. Although appellate counsel will need to become familiar with the record, trial counsel also should read it. An experienced appellate lawyer will need to spend very little time on appellate issues, such as the standards of review. Less experienced counsel, on the other hand, must spend time researching these criteria.
Finally, appellate lawyers write briefs for a living and are more efficient writers than trial lawyers. Even when new counsel costs slightly more, the increased chances of winning will likely justify the increased cost.
U.S. Court of Appeals for the D.C. Circuit judge Laurence Silberman once said: "The skills needed for effective appellate advocacy are not always found--indeed, perhaps, are rarely found--in good trial lawyers." Unless you have retained one of these rare advocates, you may decide that your trial lawyer, excellent at the trench warfare of trial, will not perform so well in the thoroughbred racetrack of appellate court.
David Walk is a partner with Hoyle, Fickler, Herschel & Mathes in Philadelphia. A former assistant U.S. attorney in the appeals division, he has taught, lectured, and written on appellate practice.