Recently, one of my colleagues came into my office and asked me to step in for him on a case he was appealing. As the lawyer in our office with an appellate emphasis, I usually get consulted and pitch in when a case gets appealed, but this time he asked me to take over the entire file. The case was appealed, docketed, briefed and scheduled for oral argument in a month. Essentially, my colleague had handed me a “case in a box” and asked me to carry it the rest of the way for him.
Even if you aren’t part of an appellate boutique, you may occasionally get asked, like I was, to handle an appeal as a case in a box. Again, I am using that term to refer to a case that was filed, tried and perhaps even briefed before you are assigned to it by a colleague or retained to handle the appeal. Therefore, when the case comes to you, it already fills a box of filings, transcripts and other materials.
How should we handle things differently when we weren’t trial counsel? Should anything change at all? Let me add my thoughts and provide some steps that, in my experience, make handling a case in a box as effective and efficient as possible.
• Get excited.
If you are an appellate practitioner, getting to argue in front of the appellate courts is a great privilege, and something you’d probably like to do more often, not less. Therefore, view the case in a box as another opportunity to hone your skills and increase your visibility to the courts. You also have the opportunity to inject fresh energy and perspective into the case; take advantage of it.
• Get trial counsel’s story.
Obviously, the record in the trial court not only will be all the appellate court will have to review, but also critically informative; however, when you get a case in a box, you should also get the benefit of trial counsel’s wisdom and experience with the case. Use it. Before you spend too much time with the file, be sure you understand, from trial counsel, the themes and critical issues in the case. Determine what errors trial counsel believed were committed (or why they weren’t errors if you are representing the appellee), what evidence was of critical importance, and what trial counsel thought could have been addressed better. Now is your chance to start the appeal on the best possible footing.
• Review the record for yourself.
Although the review of a record with fresh eyes can be time-consuming, there is no substitute for it. An appellate lawyer who knows his or her record cold stands out with the appellate courts; so do those who don’t know the record. Even if the end result is that some of the time you spend learning the record must be written off a bill, take the time to learn the record, not just the reproduced portions or the select items that drew the attention of your colleagues or the trial court. It’s the best way to ensure you are giving the appellate representation your best.
This is also your opportunity to use the resources at your disposal (Rule 1926 in the state appellate courts, for example) to review and correct any errors in the record. Since the appellate court is bound by what is in the record, be sure the court has an accurate depiction of everything that took place in the trial court.
• Don’t feel wed to themes developed before you.
Just because you have and will rely on the benefit of trial counsel’s insight does not mean that your new perspective won’t pick up on a new or improved theme. If you see an approach that might gain traction in the appellate setting, go for it. If you can construct your client’s arguments in a way that will be more palatable for an error-correcting court instead of a finder of fact or law, make that choice. Your expertise is what has been sought. Apply it to the appeal and how it proceeds.
• But do feel wed to preserved issues.
Of course, running with a new perspective does not mean that you can resuscitate an issue that was not properly preserved. This, of course, is a common issue in appellate work, and why the thorough record review mentioned above is of critical importance. As soon as you are involved in an appeal, you need to ensure that every argument you intend to make can be referred back to a preserved issue.
• Streamline to make the case appeal-friendly.
That said, not every preserved issue must be part of your principal arguments. You may only have 15 minutes to make your case to the appellate court. Don’t be afraid to take steps in your preparation to appropriately narrow your arguments and make the most important arguments count.
• Practice your argument in front of trial counsel.
Judges in this state have been known to comment on the dim view they take of the appellate lawyer who states during argument, “I was not present at trial, but it is my understanding that … .” Don’t make that mistake. Not only should you practice your arguments with trial counsel present to ensure they agree with your points of emphasis, but you should also try to bring them along to argument. This will show the court that you’ve familiarized yourself with the whole case, allows you a sounding board if opposing counsel goes somewhere you do not expect, and cuts off any argument from opposing counsel that your absence from the trial is somehow material to the argument.
• Don’t hold back on hindsight.
Even the most assured and confident trial lawyer can admit that not everything in a trial goes according to plan. So, review the proceedings in the trial court to assess the true strengths and weaknesses of the case. As a relative stranger to the case with fresh eyes, you may be able to see a flaw trial counsel is too close to see. Use the opportunity to shore up your arguments and maximize their impact.
• Don’t fight in front of the kids.
Parents will often agree in advance to maintain a united front with their children, to avoid any appearance of weakness or avenue for exploitation. Jurists, of course, aren’t kids; they are intellectuals and academics with decades of experience. As a result, they can and will immediately spot any cracks in a façade. In your written product and during oral argument, do not let on that there is, was or ever will be any disagreement among the appellate team and trial counsel. The united-front approach will maintain consistency and avoid any appearance of weakness in your client’s position.
• Keep your client informed.
This is only the last step because it needs to be a concluding point of emphasis. Clients do not like surprises (and should not be surprised whenever possible), including and especially in the appellate context. Multiple lawyers on a file may naturally result in possible confusion, especially if appellate counsel is a new face and unfamiliar to the client; however, a skilled appellate counsel can also reduce confusion by explaining the process and possible timeline to the client as the appeal proceeds. Take the time and make the effort to keep the client in the loop and educated about the appeal.
In the end, my case in a box went well. Although ultimately I was unable to reverse our client’s trial court loss in the appellate court, I was well prepared, the client was well informed, and trial counsel sat with me at argument and provided continuity and consistency. When it’s your turn, keep in mind the steps outlined above, and be excited for the unique perspective a case in a box can offer you and your appellate practice.
Jay Evans is a member of Obermayer Rebmann Maxwell & Hippel’s litigation department. He is admitted to practice in Pennsylvania and West Virginia.