Bad reasons to appeal may be hiding the good one(s)

I’d love to have a nickel for every prospective client who has called me about appealing his case for the wrong reason. I don’t mean that he’s misidentified the best legal issue to raise, or even that his appeal has a very low probability of success. I mean reasons wholly apart from the merits of their case.

When one of these prospects calls, he doesn’t know he wants to appeal for the wrong reason. It’s up to me to deliver the bad news, usually.

You’re probably thinking that this is the part where I tell you not to call me if you’re motivated by any of these bad reasons. But the news isn’t always bad. (More about that below.) Bad reasons don’t mean you have no case. A bad reason just is never (or almost never) enough on its own.  So even if you’re motivated by a bad reason, you should get advice on whether you have a good reason to appeal or, perhaps, attack the judgment in a post-trial motion.

What are some of those bad reasons? A partial list includes:

  1. My attorney committed malpractice! (Maybe so, but . . . )
  2. I hate my ex! (This one comes up all the time in family law cases.)
  3. It’s a matter of principle! (Isn’t it always?)
  4. There was a conspiracy! (“My opponents’ attorney and the judge were always sharing knowing looks . . . “)
  5. The judge hated me! (Judges are overworked and underpaid; don’t take it personally.)
  6. My opponent lied! (This is where the prospective client gets a crash course from me in standards of review.)
  7. The judge believed my ex because she wore a short skirt and low-cut top when she testified! (Really.)
  8. The jury was a bunch of idiots! (Not helpful, even if true, unless . . . )

Notice how they all have exclamation points? The client who wants to appeal for one of these reasons is always emphatic about it, on a mission because anyone with half a brain can see that he is a victim of a gross miscarriage of justice. It’s just so obvious.

But again, just because your reason for wanting to appeal may not be good doesn’t necessarily mean that you have no valid ground to appeal. You can hate your trial attorney, hate your ex, be self-righteous, and be 100% correct that every single witness for the other side lied and all their documents were forgeries, and still have a good — or at least reasonable — case. Get advice. Once your appellate lawyer points out you’re concentrating on the wrong thing, you can start discussing the right things.

In future posts, I’ll expand on some of these bad reasons to appeal, and even talk about some rare exceptions where one or more of these reasons might actually be a good point to raise on appeal.

Can your clients help you be more persuasive?

Here’s an article on my short list of must-reads: in Know Your Client: Maximizing Advocacy by Incorporating Client-Centered Principles into Legal Writing Rhetoric Practice, Rutgers-Camden law professor Jason Cohen advocates that lawyers look beyond the typical “write for your audience” mindset and incorporate the client’s values into their legal writing. From the abstract:

Clinicians, however, have developed theories of client-centered lawyering which require that the attorney uncover their client’s values, goals and objectives that may go well beyond the discrete litigation at hand. Client-centeredness encourages the attorney to incorporate this information into his/her advocacy on behalf of their client. This article advocates incorporating select principles from client-centered lawyering into legal writing. The primary purpose for this application is persuasion and advocacy, not necessarily empowering the disenfranchised client.

This is a very interesting concept, and certainly one that cuts against conventional legal writing wisdom. It also requires lawyers to step back from the “I’m the lawyer, I know what I’m doing, leave it to me” approach to client relations. Think how much happier your clients will be knowing not only that their values are being incorporated into the project, but that incorporating those values actually makes for better advocacy.

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 1: Categories

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

Well, it’s been four weeks since I promised a series of posts on this topic.  You were probably about to give up on me.

I started the first post, and it kept growing, and growing, and growing . . . clearly, some better way of organizing the topics was necessary.  And I’ve devoted substantial time to it.

How did I get to this point?  I started writing about what I figure is the number one reason lawyers don’t engage appellate counsel.  The trial lawyer thinks to himself:

“I can do it myself.”

Is that the top reason trial lawyers decide not to engage appellate counsel? I don’t know, but it certainly is a major one.  I think it is quite likely the number one reason, for it arises from, and indeed encompasses, many subsidiary reasons.

Which brings me back to the categorization of reasons lawyers and clients are reluctant to engage appellate counsel.  I think lawyers’ reeasons can be broken down into two main groups:

  1. Ability reasons (the “I can do it myself” mindset).
  2. Economic reasons.

I may come up with other categories as I write these posts, but for now, those are the two “biggies.”  Here are the reasons I have thus far identified in each category.

Ability Reasons.

Here are some of the thoughts that go through a trial lawyer’s head when deciding not to engage appellate counsel:

  1. “Hey, I’m a litigator, and appeals are litigation, so I can do it.”
  2. “No one knows this case better than I do.”
  3. “This case requires a specialist in the law of  [the substantive field of the case, e.g. employment, civil rights, torts, etc.].”
  4. “I can research and write as well as the next guy.”

Subsequent posts will take a closer look at these subsidiary concerns leading to the “I can do it myself” mindset.   For now, let’s take a look at that statement at a macro level.

Can a trial lawyer handle the appeal of his own case, or fight the appeal by the other party? Of course. Some of them, quite ably.

Weren’t expecting that, were you? But how can anyone deny that there are lawyers who quite capably handle a case at both the trial and appellate level? I know some and have worked with some in the past. They’re not mythical creatures.  In fact, one commenter, in response to my post soliciting ideas, wrote that extensive trial court experience is an asset: “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 [The California Blog of Appeal] wants to hear.”

Well, I don’t know about my audience, but I don’t mind hearing that at all.  In fact, I tend to agree, and I suspect that this describes many full-time appellate practitioners.  I can’t be the only guy who got into this gig after a dozen years of trial court litigation.

But not everyone is up to it.  Some trial lawyers just plain don’t like doing appeals.  For some, it may be because appeals lack everything they like about litigation: frequent confrontation, lots of court appearances, sleuthing through discovery, and lots of twists and turns.  Appellate practice usually isn’t a hotbed of excitement.

There are other trial lawyers who avoid appeals because they know appeals do not play to their strengths, or they don’t feel they know enough about them.

Then there are those who think, “I can do it myself,” and either shouldn’t or can’t.

Economic Reasons.

Any trial lawyer may be somewhat nervous to recommend that a client engage another lawyer for the appeal.  Some thoughts that can run through the trial lawyer’s mind:

  1. “I’m handling the case for a contingency fee, and an appellate lawyer won’t do that.”
  2. “I’m rather slow right now.  I could use the fee generated by the appeal.”
  3. “This is a good client.  What if the appellate lawyers takes him away permanently?”
  4. “I think I might have screwed this case up.  What if the appellate lawyer tells the client?”

Again, I’ll go through these individually in subsequent posts. At a macro level, though, it’s worth noting that economic concerns are legitimate.  But a lawyer has to be careful not to let his own interests trump those of the client.

Clients’ Reasons.

Sometimes, the decision not to engage an appellate attorney is no doubt driven by the client, and may even be against the advice of the trial lawyer.  Reasons include:

  1. “I can’t afford an appeal.”
  2. “An appellate lawyer will just try to talk me out of making the argument I want to make.”
  3. “Why should I pay a second lawyer?”
  4. “The case is hopeless.  Why even try?”
  5. “My lawyer won at trial.  Who better to fight my opponent’s appeal?”
  6. “Even if I win the right to a retrial, that trial judge will just find some other way to screw me.”

Some of these are no more than parallels to the attorney’s reasons.  I will probably discuss those in the posts about the parallel attorney reasons.

One factor, however, tends to underlay all of these: the client has no idea how different an appeal is from the trial court proceedings.  The client may think he actually gets to retry the case in the court of appeal.

Future Posts.

Keep in mind that I developed most of these reasons by asking myself why I wouldn’t engage appellate counsel if I were a trial lawyer (or a client).  And I’m not sure I’ll be able to write posts about discrete reasons without overlap with other reasons.  Some overlap is unavoidable.  But I will try to stick to a single reason as the focus of each post.

Finally, allow me to again solicit your participation.  If you’d like to offer a topic for a post in this series, leave your comment in this post or, preferably, in the post announcing this series.  And don’t hesitate to repeat a topic someone has already left.  That will tell me there is greater interest in that topic.

(NOTE: To access all posts in this series to date, click here.)

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.”)