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

By: Term Paper

Term Paper — Thu, 02 Apr 2009 18:22:36 +0000

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.

By: JACKAL

JACKAL — Mon, 23 Mar 2009 02:01:23 +0000

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!

By: Greg May

Greg May — Fri, 07 Nov 2008 08:09:20 +0000

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.

By: SBD

SBD — Thu, 06 Nov 2008 15:00:28 +0000

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?

By: D. Todd Smith

D. Todd Smith — Mon, 27 Oct 2008 02:39:15 +0000

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.

By: Joe

Joe — Thu, 23 Oct 2008 13:23:01 +0000

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).