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As an appellate attorney with 15 years in private practice, I hear a common refrain from appellate judges across the country: The overall quality of appellate briefs and oral arguments is too low. I remember, from the two years that I spent clerking for a judge on the Philadelphia-based 3d U.S. Circuit Court of Appeals, my surprise at finding that many appellate briefs and oral arguments were of poor quality and marginal usefulness. Moreover, the fact that an appellate brief is filed by a highly regarded law firm does not necessarily guarantee its quality or usefulness. Rather, as is typically the case, the quality of an appellate brief is determined not by the law firm hired to handle a matter, but, rather, by the attorneys who actually perform the work. Thinking like a judge One essential trait that an appellate lawyer must possess is the ability to think about legal issues from the perspective of judges who serve on appellate courts. Appellate courts are not only responsible for trying to reach the correct result in the cases on appeal, but their rulings often create precedents that will govern other cases that don’t even exist yet. Thus, an appellate lawyer must be cognizant not only of how existing precedent will affect an appellate court’s view of a newly filed appeal, but also about how the precedent created in the course of deciding the new case will affect the future direction of the law. Another benefit from getting a fresh set of eyes involved at the appellate stage is that sometimes the lawyers who have struggled in the trial court trenches lack the ability to view the issues, and their strengths and weaknesses, with the necessary detachment. An appellate attorney may be especially well-suited to explain the facts and legal issues involved in an appeal to appellate judges who, similarly, lack any extensive pre-existing knowledge about that given case. Aside from being able to appreciate the mindset of appellate judges, another essential skill that an appellate lawyer must possess is the ability to communicate effectively and persuasively in writing. Appellate briefs are well established as the most important aspect of a party’s presentation on appeal. Some lawyers dread the idea of having to write a lengthy and complex appellate brief, and many lawyers, truth be told, are simply not very good writers. An effective appellate brief communicates complex factual information and legal arguments in a straightforward and easy-to-understand manner that is persuasive yet not overbearing. A well-written appellate brief can be a pleasure to read, and appellate judges and their law clerks will be especially appreciative because such briefs are so few and far between. The next skill that an effective appellate lawyer must possess is the ability to argue complex legal and factual material to a panel of appellate judges. Becoming an effective oral advocate at the appellate court level results from a combination of experience, appropriate preparation and an appreciation of what appellate judges are themselves seeking to accomplish from oral argument. What judges want to hear As many trial and appellate courts reduce the instances when oral argument will be entertained, fewer attorneys are developing or maintaining the skill of persuasively arguing issues of law orally to judges. What appellate judges do not want to hear, for the most part, are oral arguments that consist of a closing argument to the jury, a reargument of the facts of the case to explain why the fact-finder reached the wrong result, a laundry list of minor grievances in an attempt to prove how biased the lower court judge had been or an obsessive focus on the irrelevant to the exclusion of what matters on appeal. Finally, an appellate lawyer must be as well versed as possible in the rules governing when appeals can or must be taken, what is necessary to preserve issues for appeal, and the rules governing what the appellate briefs and appendix or record excerpts on appeal must contain. You could be the best writer, the best at oral argument and the best appellate strategist on earth, but if a timely appeal is not taken, if the winning arguments have not been properly preserved for appeal or if the briefs and other materials necessary to process the appeal are not prepared in the form necessary for filing, none of those other outstanding skills will matter. In most of the appellate matters that I work on, the attorneys who were handling the case before it reached appeal continue working on the case with me. And most of the time, it is those lawyers who realize that getting an appellate lawyer involved will benefit the client and increase the chance of achieving the desired result on appeal. But with increasing frequency, sophisticated clients themselves are recognizing the value in having appellate lawyers becoming involved as a case heads toward appeal. When should an appellate lawyer become involved in a case? Most of the cases that I get involved in come to me after the trial court has issued a decision that is subject to appeal. Sometimes, however, I get involved at an earlier stage, such as following the entry of a jury’s verdict but before the due date for post-verdict motions. Having an appellate lawyer involved at the post-trial motions stage permits an appellate lawyer to ensure that the appropriate issues for appeal are properly preserved. When the call comes too late While it is rare for a lawyer or litigant to seek my services at too early a stage in the litigation, on occasion I have experienced the frustration of having my services sought too late. Although appellate lawyers wish that we could be miracle workers in all cases, there is only so much that even the most highly qualified appellate lawyer can do if he or she receives a case after a notice of appeal was filed too late, or after an appellate court has issued a decision on the merits and the lone remaining recourse involves requests for discretionary rehearing or discretionary appellate review from a higher court. Although most of the appeals that I work on involve working cooperatively with the lawyers who handled the case in the trial court, sometimes the client desires entirely new representation on appeal. In addition, companies sometimes approach me to obtain my prediction-based on the appellate briefs and oral argument, if available-of an appeal outcome that could substantially affect their financial holdings. And I have also been approached to serve as an expert witness in legal malpractice actions involving claims that a case was not properly handled on appeal.To be sure, not every case that is heading to appeal will merit the involvement of an appellate lawyer. But for those cases that might, it could be more than worthwhile to get an experienced and effective appellate lawyer involved. Fortunately, lawyers who meet that description can now increasingly be found throughout the United States. Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached at [email protected]. His appellate Web log is http://www.howappealing.com/.

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