As trial counsel, you have spent months, if not years, cultivating a relationship with your client. You have developed a good working relationship, and they want to hire you to file their appeal. While you are an experienced and highly skilled litigator, appeals are not part of your normal repertoire. Although your client may strongly urge you to take the case, referring the case to an experienced appellate lawyer is the best way forward for both the client and you. The question isn’t can you draft the appeal, the question is, should you? A few of the reasons a trial lawyer should refer out their appeals are:
As a trial lawyer, you are experienced in conducting discovery, selecting a jury, presenting and challenging evidence, raising objections, examining witnesses, and persuading a judge or jury. An appellate lawyer, by contrast, is accustomed to performing large amounts of legal research and writing lengthy, technically correct briefs. The type of substantive legal knowledge a trial lawyer must have is also quite different than what is required of an appellate lawyer. Appellate counsel is skilled at reviewing the record and focusing on identifying errors made during the trial. This often requires an extensive knowledge of appellate case law and an understanding of the likelihood of success on appeal. Appellate lawyers know how to develop these issues into persuasive arguments in an appellate brief and at oral argument.
When appellate counsel takes over the case, they review the case with fresh eyes and bring no commitment to the issues that were raised at trial. Appellate counsel is able to decide objectively which issues are best advanced on appeal from the cold record. As California’s Second District Court of Appeal explained “[T]rial attorneys who prosecute their own appeals . . . may have ‘tunnel vision.’ Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.” Estate of Gilkison, (1998) 65 Cal.App.4th 1443, 1449-1450. This doesn’t mean your knowledge of the case and the client is lost, however. Skilled appellate counsel will often want to consult with the trial counsel and get their insights an opinion on the case.
When is the last time you had 4 hours, uninterrupted, to research an issue or draft a document? If this sounds like a fantasy to you, then the practicalities of writing an appellate brief alone mean you should refer the appeal out. Quality legal research and writing not only takes skill, it takes time. The research and writing required for an appellate brief requires sustained and uninterrupted focus for hours on end. Such sustained focus on a single task is often difficult for busy trial lawyers who have to attend to several matters throughout a day. Even if you can make the time to work on an appeal for several hours at a time, does hours on end of research, analyzing and drafting sound attractive to you? For appellate lawyers, this is a part of the job!
Genny Castellanos, Esq is the founder and CEO of De Novo Review, the first curated network of attorneys and legal staff to help law firms expand into a new area of law on a per-project basis. You can find out more about her here: https://denovoreview.com/