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When it comes to advanced brief writing, sometimes it’s best to appeal to a higher court. “There are many successful lawyers who are not good writers,” says Gary C. Harris, a Georgia sole practitioner who writes federal and state court appeals for other lawyers. Lawyers who are poor writers can manage letters and affidavits but “when it comes time to write a brief it becomes really important to be a good writer,” says appellate lawyer Donald P. Jacobs. Jacobs is a partner with Budd Larner Gross Rosenbaum Greenberg & Sade, a Short Hills, N.J.-based general practice firm that has recently opened an Atlanta outpost. Trial lawyers need to be good at thinking on their feet, while appellate lawyers call upon different skills, Jacobs says. “An appellate lawyer has 30 to 40 days to present it just right,” he says. Fortunately there are options for lawyers who lack the writing skill, time, or desire to do appellate work. Lawyers can pass their appeals to appellate lawyers, they can team up with skilled practitioners, or they can enlist ghostwriters. Benefits and burdens come with each option. The decision is one with professional, financial and emotional consequences. HANDING OVER THE REIGNS Perhaps the simplest and cleanest solution is to bring in as counsel a good appellate lawyer. This specialist knows all the tricks of the trade: persuasive argumentation, familiarity with appellate court rules, and which arguments have the best shot when presented to specific judges. “A lawyer who is not familiar with appellate work may follow the rules correctly, their brief may be in order, but they may not have a sense of the best way to get the court’s attention,” says Harris. “Unless you do it with some degree of regularity, it’s best to let someone else do it,” he says. Many lawyers are loath to hire someone who has not participated at trial, fearing they will be unfamiliar with the record. But Jacobs says this is not a problem. He can garner all the information he needs from the record; and, by the time the appeal rolls around, even a lawyer present at trial will have to review that record very carefully, he says. No matter who does the appeal, that record must be mastered — procedurally and substantively. Jacobs sets an hourly rate and caps the overall amount. “I never bill just a flat fee,” he says. THE TRADEOFFS There are obvious tradeoffs to substituting counsel. First and foremost, it’s no longer your case. You lose the income you would have generated by the appeal as well as management of the case. But if you don’t have the wherewithal or the desire to deal with an appeal this may be the best solution. For lawyers who want to improve their appellate advocacy skills and continue to direct the case, teaming up with an appellate lawyer is a good alternative. The price of an education may well be worth the fees you share the first time around. Not all lawyers tell their clients they have enlisted outside help. And the rules of professional responsibility don’t necessarily require that lawyers do so. But most clients will appreciate their lawyer’s candor and think him a better practitioner for creating a “dream team.” Harris, who has been practicing law for 33 years, charges between $5,000 and $20,000 for handling an appeal. The price depends on the size of the record and the complexity of the issues. A flat fee — determined after an initial, paid consultation — covers the entire appellate process. Harris also will present the oral argument, if asked. Sometimes litigants call Harris directly. But most often he works for other lawyers. “I usually don’t put my name on the brief,” he says. Harris says he “doesn’t think it’s an ethical problem” that his name is not on the brief because “they get a draft, we discuss it.” It is a give and take, back and forth process, he says. “They make the ultimate decision. I’ll argue the points they want to argue.” Harris points out that at large firms partners write few briefs. Subordinates pen them while senior lawyers supervise and sign the document. BRIEF WRITING COMPANIES Several companies will research and write legal briefs on an hourly basis. Essentially, these businesses serve as brokers. They assign individual research and brief writing projects to lawyers who wish to supplement their own practices. Some of the companies have operated for 20 years or more, such as the Minneapolis-based Legal Research Center and the San Francisco-based Quo Jure Corp., formally Hastings Research. Despite their staying power, these companies do have a stigma. Jim Schenkel, president of Quo Jure, has been doing contract brief writing for more than 25 years. During a conference some years ago, Schenkel says, a lawyer approached him and asked him what he did. When Schenkel said he writes briefs for other lawyers, the lawyer replied, “Sounds like malpractice to me.” Schenkel says, “many people think that,” but points out that what he does is not “conceptually different” than a partner at a big firm sending an associate to research and write a brief. Schenkel makes clear that his company is “not practicing law” but “simply providing information for our customers.” Quo Jure charges $85 per hour for research and writing, slightly more for rush services. It typically takes between 15 and 60 hours to complete a project. Most of Quo Jure’s customers are sole practitioners or firms with fewer than 12 attorneys. Most do plaintiff’s work. They rely on the company because they lack the uninterrupted time needed to write a brief or because they lack expertise in a particular area, Schenkel says. “If writing is being relegated by a lawyer to someone else, I think something has gone wrong. I can’t imagine putting my name on someone else’s work,” says legal writing scholar James R. Elkins. Clearly you would have to make law into a business to do that, he says. Many lawyers remain uncomfortable with the notion of a research and brief writing service. But the ongoing transformation of legal practice from the single advocate system to one that employs contract lawyers and permits multidisciplinary practice may ultimately legitimize this market.

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