Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 4: “This Case Needs a Specialist.”

(NOTE: This post is the fourth 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 — and in this case, I’m referring to a trial lawyer that specializes in some substantive area of the law — thinks to himself:

“This case needs a specialist.”

The trial lawyer who says that rarely means an appellate specialist. Instead, the ace employment lawyer (to use just one example) thinks, “This employment case needs an employment lawyer like me on appeal, I can’t pass it off to an appellate lawyer.” Let’s take a look at that assumption.

Does the Case Require a Specialist?

First, let me make clear that I use the term “specialist” throughout this post in the generic sense. That is, I use it not to refer to someone who is certified as a specialist by her state bar, but to refer to someone who devotes most of their practice to a certain area of the law.*

Let’s assume you’ve got a construction case handled by a construction law litigator, and now it’s time for the appeal. The lawyer who fits the type I’m describing thinks that he’s too indispensable to the appeal to hand it off to an appellate lawyer.

He may be right. (Another thing you may not have expected me to write in this series.) He may be almost indispensable in a particular case. But does that mean he should handle the appeal himself?

Probably not. Specialized knowledge of the substantive law can certainly have its advantages on appeal. That’s why a smart appellate lawyer consults with the trial attorney in any case. But specialization can breed the same sort of tunnel vision as that bred by an intimate familiarity with the case: namely, an inability to let go of (or even recognize) weak arguments, a failure to recognize good ones, and keeping too many arguments. (See Part 3 of this series for more on those problems.)

How could a specialist confuse good arguments with bad ones? Because he fails to appreciate the differences between trial practice and appellate review. Great trial arguments based on your version of the facts won’t be worth much (if anything) if the jury didn’t ultimately agree with your version of the facts. Those arguments may have seemed awfully compelling presented to a jury, and the trouble is that the trial lawyer (and especially his client) may be so aghast at the jury’s refusal to agree with his set of facts that he refuses to let the argument go on appeal.

The Client Perspective

Clients hunger for specialists. (If you don’t believe me, believe this guy.) The sad part is, the typical client’s hunger for a specialist will usually lead the client to assume that the specialist he hired for his case in employment law, school law, personal injury law, construction law — you get the picture — is the right attorney to take that case all the way to the United States Supreme Court.

It’s also possible that the client regards a long-time attorney client relationship with his law firm as a second, and equally important, form of specialization. A client that has had all its legal work, from regulatory compliance to the occasional (or not so occasional) lawsuit, handled by the same lawyer or firm for the last decade or more may view the trial lawyer (and the trial firm) as “specialists” in the client’s needs, regardless of the substantive area of the law at issue. An individual client whose solo lawyer has likewise addressed his needs over the years — wrote his will, handled his divorce, represented him in that drunk driving case, for example — may have the same mindset.

The “Last of the Generalists”

Both lawyers and their clients who are enthralled by the idea of having a specialist handle the appeal may tend to think in terms of the wrong specialties. It is not specialization in the client or in the substantive area of the law that usually matters most. It is the knowledge of appellate practice that can make the difference on appeal.

What does the client (and his or its lawyer) really need to consider? I think the answer, or at least a good chunk of it, was well expressed several months ago by D. Todd Smith of the Texas Appellate Law Blog. Writing on the related issue of whether in-house counsel should stick with big firms for their appeals, Todd wrote:

Appellate lawyers are perhaps the last of the generalists. Although appellate practice has gained notoriety as a specialty, it focuses less on the substantive law than on the lawyer’s research and writing ability, knowledge of appellate procedure, and familiarity with the court hearing the case. Because appeals are limited to the trial record, knowledge of the client’s business and history are not as important as the ability to guide the client through the appellate process with the goal for that specific case in mind.

I love that expression: “the last of the generalists.” Though it is not, of course, true in a technical sense — especially in smaller towns — I think it captures where appellate lawyers fit into a legal world increasingly dominated by specialists in various substantive areas of the law. Whether a client’s case was handled by a specialist in dog bites, toxic torts, automobile accidents, tax, employment, malpractice, wills and estates, business litigation, or any of the myriad of other specialties, the appellate lawyer is ready to tackle it.

Try Working Together

For those lawyers and clients who just can’t bear to “hand the case off” to a new lawyer for the appeal, there is always the option of working with the appellate lawyer. Shared work arrangements can be customized to a given case. Increased expenses to the client may be surprisingly nominal, since the typical appellate lawyer usually confers to some degree with the trial lawyer in any event.

* NOTE: I provide the above definition of “specialist” because my own jurisdiction is quite picky about the term. The last I checked, a California lawyer may not refer to himself as a “specialist” unless he has been certified as a specialist by the state bar. That rule applies, at least, to areas in which the bar certifies specialists; I’m not sure whether it applies if the bar does not offer certification in one’s “specialty.” Hence, my generic use of the term in this post.

8 Responses to Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 4: “This Case Needs a Specialist.”
  1. Joe
    October 23, 2008 | 6:23 am

    There are two main challenges here: 1. lawyers trusting other lawyers with a client; and 2. humility. It’s rare a trial attorney or litigator wants to admit they don’t know how to handle something. It’s also rare that an attorney trusts another attorney to do a good job, sometimes attorneys even in the same firm. These two things are major roadblocks to propery handling appeals (at least sometimes anyway).

  2. D. Todd Smith
    October 26, 2008 | 7:39 pm

    Joe raises an interesting and valid point. Lawyers are controllling by nature, and it’s counterintuitive to hand a case off when you’ve got a lot of blood, sweat, and tears invested in it. That’s why relationship-building between trial and appellate lawyers is so important. The trial lawyer needs to trust that the appellate lawyer will handle the case appropriately, and the appellate lawyer needs to deliver on that trust.

  3. SBD
    November 6, 2008 | 8:00 am

    I am just curious if you think there is a difference between the Appellant attorney and the Respondent attorney being the trial attorney on appeal.

    Would the trial attorney that won his case at trial become over confident in the appellate court?

  4. Greg May
    November 7, 2008 | 1:09 am

    SBD,

    Overconfidence could be a problem, if it leads the attorney to ignore the standard of review. A well-written appellant’s opening brief should educate the respondent’s lawyer about the standard of review.

    But suppose the appellant raises a purely legal issue. It’s possible that a trial lawyer representing respondent might be so wrapped up in his case that instead of arguing the legal issue raised in the opening brief, he insists that the court should affirm because the jury obviously believed his client’s side of the story.

  5. JACKAL
    March 22, 2009 | 7:01 pm

    Don’t know how relevant the following point is, but if a long-term client insists on retaining trial counsel for the appeal (even more likely if trial counsel won), then trial counsel has an interesting option: Retain appellate counsel to ghost-write the brief(s). If client has faith in trial counsel, this should not be a major issue. Then, appellate counsel preps trial counsel for oral argument. Everyone wins with regard to the trial/appeal “transition”… hopefully!

  6. Term Paper
    April 2, 2009 | 11:22 am

    It is rare that an attorney trusts another attorney to do a good job, sometimes attorneys even in the same firm.I think it captures where appellate lawyers fit into a legal world increasingly dominated by specialists in various substantive areas of the law.

  7. Vinny
    March 5, 2012 | 6:25 am

    Most of the lawyers cannot stand to hand their case and client to a new lawyer for the appeal. But there is option of working together with the appellate lawyer. Both can share their work arrangements for a give case. The client expenses will increase as the appellate lawyer and trial lawyer both cost nominal for any case.

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