Why Are Some Lawyers and Their Clients Reluctant to Engage Appellate Counsel?

UPDATE: This post is included in Blawg Review #174 at Texas Appellate Law Blog.

Why don’t some trial lawyers or their clients engage appellate counsel when it comes time for the appeal? Over the years, I’ve heard various reasons advanced for this. Among them: lawyers see no need to hire new counsel for something they can do themselves, lawyers are afraid to lose the client forever to the appellate lawyer or his firm, lawyers and their clients are afraid that the appellate lawyer won’t know enough about the specialized area of law involved in the appeal, clients are too comfortable with the trial lawyer to switch, clients are fed up with bad experiences with their trial lawyer and do not want to experience the same frustration with an appellate attorney. Some lawyers may even be second-guessing themselves about how they handled the case in the trial court and thus may be concerned that a new lawyer would counsel the client that the trial lawyer screwed up.

I’m planning a series of posts to be spread out over several weeks (maybe longer) about why clients (and, probably even more so, their lawyers) are reluctant to engage appellate counsel for their appeal. I am not exploring the issue of why clients may not bother to appeal at all. Rather, I wil explore why, once a party is involved in an appeal, that party moves forward either with his trial lawyer as counsel on appeal or in pro per.

I would love to have your input on this project. If you have any objections to appellate lawyer representation that you would like me to write about, tell me about it in a comment on this post. Feel free to “second the motion” of other readers; I am more likely to write about objections that more people feel exist.

I would especially like to hear from: (1) trial lawyers who handle their own appeals; (2) appellate lawyers that encounter objections to retention; and (3) parties or former parties to lawsuits who either did not hire appellate counsel or had to have certain doubts removed before doing so. But feel free to offer ideas in the comments regardless of whether you fall into any of these categories.

(NOTE: To access all posts in this series to date, click on the link below called “On Reluctance to Engage Appellate Counsel.”)

15 Responses to Why Are Some Lawyers and Their Clients Reluctant to Engage Appellate Counsel?
  1. Transplanted Lawyer
    August 19, 2008 | 1:30 pm

    I want to do the appeal myself. It seems like fun. Besides, I know I’m right and if I just get a chance to explain it to a new, smart judge, I’m sure I’ll win!

  2. D. Todd Smith
    August 19, 2008 | 8:55 pm

    Great idea for this post, Greg. Hope it generates some discussion and look forward to chiming in. Maybe we can get it going over at my blog, too.

  3. Jack of All Arguments
    August 22, 2008 | 9:51 am

    Transplanted Lawyer no doubt intended sarcasm, but his stated reasons are exactly why I started doing my own appeals. The good results I obtained kept me doing them myself. I understand (I think) the arguments for specialized appellate counsel and I think they are right in general. But, of course, I think I am the exception to the rule (as most do I am sure). My personal belief is that appeals to the intermediate courts are best handled by lawyers well versed in both appeals and trial court proceedings. Probably not what the audience of this blog wants to hear.

    PS: I think the best argument for a specialized appellate lawyer is that he or she takes a fresh look at the case and issues, but that is hardly the exclusive domain of appellate specialists.

  4. Anonymous
    August 22, 2008 | 12:01 pm

    Speaking as one who reads a lot of briefs from inside a court (and a former practicing appellate lawyer), these comments from trial lawyers who do their own appeals strike me. Of course, a VERY small number of people are actually competent in both the trial and appellate courts. But far and away, the vast majority are not. The quality of the briefs and the appellate skills I see are mostly a total disaster, even if the lawyer happens to prevail on appeal–that is usually in spite of himself or herself. And most of these bad briefs are not from appellate lawyers. I can usually tell when I read a (rare) brief written by somebody who actually knows or exhibits some familiarity with not just the applicable rules but also the appellate emphasis and focus, i.e., not a pitch to a jury, not hyperbolic pot shots at opposing counsel, not a regurgitated trial brief but instead targeted advocacy with proper grammar and spelling, selected issues, proper citations to the record, no misstatement of authorities, current and thorough legal analysis (what is usually missing), and argument made through the lens of the appropriate standard of review (usually ignored). I think trial lawyers who are just that ought to serve their clients a lot more often by hiring appellate counsel. Either that or take the time to learn the rules and the skills.

  5. In Pro Per
    August 22, 2008 | 6:25 pm

    Sometimes, a client such as myself has no choice other than filing their appeal in Pro Per. In my case, my attorneys failed in several ways which sent me into binding arbitration. The biggest failure was that they did not even interview important witnesses to my case. One witness gave testimony that I knew was incorrect and could not figure out why. When the hearing was over, I went to speak to this witness and discovered misconduct by the defense attorney had occurred helped along by my attorneys never interviewing the witness to begin with.

    When I notified my attorneys of this fact and ordered them to inform the arbitrator about the misconduct before an award rendered, they ignored me and allowed an award to be made against me. I immediately filed them, but soon found out that it is nearly impossible to hire an appellant attorney to represent you in vacating an arbitration award. So I had no choice but to represent myself.

  6. Jeff Rambin
    August 25, 2008 | 7:18 am

    “Intermediate” appellate court is a very deceptive term. As far as I can tell, I’ve got the only blog anywhere in the nation focused on an intermediate state court of appeal (the court in Tyler, Texas). So I keep up with the Tyler court, and how its decisions are reviewed by the Supreme Court of Texas. Right now there’s only one — one — case out of Tyler that is set to be decided on the merits by the Supreme Court of Texas.

    If you asked most trial lawyers to put a number on it, I bet they’d say they’ve got a “one in three” chance of getting their state’s highest court to take the case if an interemediate decision doesn’t go their way. The trial lawyer’s unspoken gut reaction? The state’s highest court is bound to take their case, if need be. This view makes trial lawyers more likely to handle their own appeals in the intermediate courts.

    Looking just at the numbers, the “intermediate” court is the court of last resort for the vast majority of cases. Including, most likely, yours.

  7. Trial and Appellate Lawyer
    October 27, 2009 | 7:36 pm

    From my experience, the fundamental problem with splitting the trial and appellate functions on the CIVIL side is that the appellate lawyer won’t be able to provide much assistance.

    Having read many, many appellate decisions, and reversed more than my share of trial court decisions, it is quite obvious to me that the number one reason for losing an otherwise meritorious appeal is the failure of the trial counsel to spot and preserve a reversible issue, or more shocking yet, conceding the issue.

    I recently got a published decision which rejected more than a dozen published and unpublished federal trial court decisions, an unpublished federal court of appeals opinion, and unpublished and published Court of Appeal’s decisions.

    The original error in the law came about in a California federal case and a Massachusetts trial court case and subsequent unpublished Second Circuit decision. In both instances, the malpracticing trial court lawyer who lost CONCEDED the legal issue. Subsequent courts just accepted the ridiculous analysis without question.

    The winning issues on appeal are legal issues. Unless the issue is jurisdictional, one has to preserve the issue at the trial court level, which usually requires not only pointing out the judge’s error with the correct legal argument, but also explaining the prejudice. If one has properly identified and preserved the issue, then one is probably competent to take the appeal up. If one has not, then an appellate specialist will not help and indeed will probably just identify a malpractice claim against the trial lawyer.

    Criminal law is a different matter. Because of the availability of ineffective assistance of counsel claims, an independent appellate specialist at the criminal stage will often be a good idea, and criminal trial lawyers will always face such second-guessing anyway.

  8. Wendy Lascher
    October 29, 2009 | 9:57 am

    I disagree with the commenter. Given what he/she identifies as the “number one reason for losing an otherwise meritorious appeal,” an appellate specialist has immense value to a trial lawyer who chooses to consult an appellate lawyer early on. I have been told this as recently as yesterday, when my associates and I met with a trial lawyer who chose to bring us into the case before trial, to advise him about how to try a case in a field where the caselaw is in disarray.

    A close second place for reasons meritorious appeals are lost is that they are pursued by the trial lawyer. Some trial lawyers are simply myopic about the issues and what made them lose or (if they won) where the case is vulnerable. Others just can’t write.

    Of course this is a generalization. Some people are just good all around lawyers. But trial lawyers are my best source of business, and generally very appreciative of the work I do.

  9. lawyers sydney
    January 16, 2011 | 8:15 pm

    Hi
    Even I have some doubts about appellate lawyer on
    areas like crime and civil. In most of the cases people feel comfortable with their trail lawyer

Trackbacks/Pingbacks
  1. Help Out Law Blogger Kimberly Kralowec | The California Blog of Appeal
  2. Why Lawyers and Clients are Reluctant to Engage Appellate Counsel, Part 1: Categories | The California Blog of Appeal
  3. Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 2: “It’s Just Litigation.” | The California Blog of Appeal
  4. Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 3: “No one knows the case better than I do.” | The California Blog of Appeal
  5. Blawg Review #174 | Texas Appellate Law Blog
  6. Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 5: The Client’s Perspective | %page% | Greg May's California Blog of Appeal
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This blog is brought to you exclusively by attorney Greg May, an "of counsel" attorney with Jones & Lester, LLP in Oxnard, California, who can handle your appeal anywhere in California.

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