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.

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I recently got a published decision which rejected more than a dozen published and unpublished federal trial court decisions, an unpublished federal court of appeals opinion, and unpublished and published Court of Appeal’s decisions.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original error in the law came about in a California federal case and a Massachusetts trial court case and subsequent unpublished Second Circuit decision.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.

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.

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.

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.