Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 3: “No one knows the case better than I do.”

(NOTE: This post is the third in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.)

Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal.  He thinks to himself:

“No one knows the case better than I do.”

Who could argue with that?  The trial lawyer may have spent hundreds or thousands of hours on the case over several years.  Met every witness personally and attended every deposition.  Pored through every discovery response, every document, every exhibit and every transcript.  Several times.

And yet . . . I still think it unwise, in most circumstances, for the trial lawyer to handle the appeal.  In fact, I think reliance on one’s own familiarity with the case is a particularly dangerous reason to remain counsel on appeal.  Because when the trial lawyer says, “No one knows the case better than I do,” what he’s really saying, usually without knowing it, is:

“No one knows the case from my perspective better than I do.”

A trial lawyer’s failure to include the emphasized language in his thought process indicates he’s not looking at the case objectively.  This is dangerous for at least three reasons.

First, the trial attorney (or client) may be unwilling to let go of bad arguments. Lawyers, but especially clients, can become so wrapped up in a bad argument because it has been the centerpiece of their case for years (indeed, this can often sink prospects on appeal).  Sometime, emotional attachment to the argument derives from its very nature, such as a claim of fraud or inequitable conduct against a party despised by the other.  Being out to “get” someone is a terrible reason to take your case up on appeal.  And bad arguments may even be frivolous ones, subjecting you to (admittedly rare) sanctions for a frivolous appeal.

Second, the resulting corollary: the trial lawyer misses the good arguments.  Especially easy to miss are new arguments that might be raised notwithstanding the general rule that new arguments cannot be raised on appeal.

Third, the trial lawyer keeps too many arguments.  Raising 47 points of error is not usually a successful strategy.  If the KISS principle (Keep It Simple, Stupid) didn’t already exist, it would have been coined for appeals.  Of course some cases are complicated by nature, making simplification on appeal challenging, so not every case can be reduced to “simple.” But it should be reduced to the simplest possible presentation.

A fresh, objective look at the case will allow appellate counsel to clear out the deadwood and focus the appeal on the best arguments. This is because the appellate lawyer’s perspective is — initially, at least — not much different than that of the appellate court itself.  That view of the case is uncluttered by knowledge of written discovery or deposition testimony that never made it into the record (though of course, the appellate lawyer should look at excluded evidence to see if exclusion was prejudicial), or biases for or against witnesses, parties, or the judge.

Does this fresh look at the case really have to be undertaken by an appellate lawyer?  As one reader pointed out: “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.”  The suggestion is that the trial attorney can readily handle the appeal as long as he has another attorney, appellate practitioner or not, look at the case.

I think it is important that the lawyer taking the fresh look at the case be an appellate lawyer.  First, if the analysis by the appellate lawyer convinces the trial lawyer that it is best to pass the case to an appellate lawyer for the appeal, then part of the appellate work — the initial review — is already done.  But even where the trial lawyer is virtually certain he will handle the appeal himself, review by an appellate lawyer is best because the appellate lawyer will look at the case through an appellate lens, giving the trial lawyer insights he may not have gained from another trial lawyer.

Bottom line: even where a trial attorney intends to handle the appeal himself, a case going up on appeal needs a fresh look.  That can be by the original trial attorney, a trial attorney colleague, or appellate counsel.  But the trial attorney is usually best served by having it done by appellate counsel.

8 Responses to Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 3: “No one knows the case better than I do.”
  1. Joe
    October 8, 2008 | 6:50 am

    In matters like this, it’s most important to put the client first and one’s ego second. However, this can be incredibly difficult. Even though appellate matters have different judges/justices, every litigator and trial lawyer feels any courtroom is their home.

  2. Greg May
    October 8, 2008 | 2:12 pm

    Joe,

    When I was just getting started in my solo practice, I asked a prominent trial litigator for marketing tips. He said: “You’ve got to convince trial lawyers that they shouldn’t be handling their own appeals, but you’ve got to do that without insulting them. And they have to be able to refer clients to you without fear of losing the client to you for good.” This series is an attempt to address the issues inherent in that advice, including ego.

  3. D. Todd Smith
    October 26, 2008 | 7:02 pm

    As I read this post, I thought of the “forest for the trees” problem that all lawyers have after they’ve spent too much time on a case. Your mind plays tricks on you, and after a while, you just stop seeing things for what they are. Better to have a fresh set of eyes on the problem as you take it to another level of review.

  4. lawyers sydney
    January 16, 2011 | 8:24 pm

    cos of time frame. lawyers usually take lot of time to do research about the case and need to contact so many people involving in it.

Trackbacks/Pingbacks
  1. Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 4: “This Case Needs a Specialist.” | The California Blog of Appeal
  2. On Reluctance to Engage Appellate Counsel, Part 2 | Texas Appellate Law Blog
  3. 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
  4. The “outsider’s perspective” theory illustrated in the extreme | %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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