Category Archives: On Reluctance to Engage Appellate Counsel

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 5: The Client’s Perspective

For those of you wondering, yes, this is a resumption of a series of posts I wrote years ago on reluctance to engage appellate counsel. (You can read the whole series here.) I was reviewing that series this morning to develop some marketing ideas, and saw some ideas I want to develop further.

My earlier posts cited many reasons that attorneys might not involve appellate counsel, but never really expanded on some of the reasons that clients might not do so. I listed such reasons early in the series, which I repeat here:

  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.”

Subsequent posts will explore these reasons, and possibly others, in detail.

I suspect that the principal reason any client raises one of these objections is because her trial attorney never explained how the appeal differs from the trial court proceedings. It is important for attorneys to educate their clients about those differences in any consideration of an appeal, even if the trial attorney plans to handle the appeal himself. I believe that a properly informed client would demand the engagement of appellate counsel, even if the client otherwise has full confidence in her trial lawyer. I will try to make my case on this in subsequent posts.

Again, you can read the earlier posts in the series here, or click on a link below to go to a specific earlier installment:

Series Announcement: “Why Are Some Lawyers and Their Clients Reluctant to Engage Appellate Counsel?”

Part 1: Categories

Part 2: “It’s just litigation”

Part 3: “No one knows the case better than I do.”

Part 4: “This Case Needs a Specialist.”

Suggestions for future installments are welcome. You can make suggestions by leaving a comment on this post.

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.

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.

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 2: “It’s Just Litigation.”

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

In my first post in this series, I broke down lawyers’ reasons for not engaging appellate counsel into two broad categories: those related to ability and those related to economics. Today, we will examine a reason related to ability:

It’s just litigation”, or “Hey, I’m a litigator, and appeals are litigation, so I can do it.

Are appeals litigation?  Well, let’s see.  Adverse parties?  Check.  Legal and/or factual disputes?  Check.  Courtroom and judges?  Check.  Judgments?  Check.  Yeah, I’d say that appeals are litigation.

That said, they are a continuation of litigation, and with crossing the boundary from trial court to court of appeal, the parties and their attorneys enter a new realm.  That realm has multiple judges hearing the same case, no juries, no discovery, few motions, and an emphasis on persuasive writing that is rivaled in the trial court only on dispositive motions.

As I  noted in my first post, many lawyers are comfortable, and  quite able, on both sides of the divide.  Neither this post nor any other in the series is meant to deride the skills of trial lawyers.

But there are pitfalls that await the lawyer who assumes appellate practice is no different than trial practice.  Perhaps the biggest is the standard of review.

Pitfalls in the Standard of Review.

The trial lawyer entering the appellate landscape for the first time may have difficulty navigating through it.  That can result in wasting time (and, for the client, hourly fees) on useless activities or argument, even a failure to even recognize the burden he or she faces on appeal.

One such useless exercise in the court of appeal that happens with shocking regularity is to argue to the court as if the three justices are a jury: this witness is believable, this one is not; that evidence should be disregarded; the other side’s story makes no sense, etc.  How do I know this happens?  I’ve talked to a couple of appellate justices — not a large enough sample to be of statistical significance, admittedly — who told me this happens regularly. Not necessarily frequently, but regularly.

This approach betrays the lawyer’s lack of familiarity with the most fundamental brick in the appellate arsenal: the standard of review.  Which is why I was so stunned by the justices’ revelations, even though I have seen appellant’s briefs that didn’t even mention the standard of review.  (Occasionally, you might even see a court neglect to state it!)

Simply put, an appeal isn’t your second chance to try the case.  It’s merely an opportunity to convince the court of appeal that the trial court erred and that the error prejudiced your client.

Of course, the evidence in the trial court can come into play in the court of appeal, just in a different way (usually).  But even in cases of substantial evidence review — in which the court of appeal will reverse if there is no substantial evidence to support a finding required by the judgment — persuasion based on credibility is generally out of place.

What’s more, unfamiliarity with the standards of review on appeal might cause a lawyer to miss good arguments entirely.  An undue concentration on the evidence produced at trial may lead the trial attorney to miss important issues preserved for appeal on a less deferential standard of review, and thus presenting a greater chance of success on appeal.  Is there a legal issue you’ve missed because you are so wound up in the presentation of evidence at trial?  If so, you’ve missed an opportunity to obtain “de novo” review, under which the court gives no deference to the trial court — your best shot at success.  In fact, that legal issue may be hidden within a more deferential standard — whether the trial court abused its discretion, or whether substantial evidence supports the judgment, may in turn rely on a question of law subject to de novo review.

Simply put, the simplicity of the standard of review structure — de novo review, abuse of discretion, and substantial evidence — masks a lot of nuance not readily discernible to someone unfamiliar with appellate practice.  It’s far more than a “smell test”.  Indeed, parties regularly argue over the applicable standard, either because the nature of the issue is misleading or because the applicable standard for a given judgment has not been established (such as here, here, or here, for example).  If it were really simple all the time, would there be a book on the subject?

I haven’t discussed some other pitfalls, mostly for the sake of brevity (if you can call this post brief).  Perhaps I will give this particular reason for not engaging appellate counsel — “it’s just litigation” — a few more posts of its own.

Preferences.

Finally, the trial lawyer may find that he or she simply does not like the appellate process.  As I noted in my first post:

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.

If your strengths lie in frequent confrontation, then maybe apeals aren’t for you, either as a matter of preference or a matter of skill set.  (This is especially true if you don’t like spending time in the law library or writing, but I’ll address that preference in a future post.)

The Client’s Perspective.

The client consideration that parallels the lawyer’s belief that “it’s just litigation” is really an absence of consideration.  That is, many clients may see no difference at all between their trial court action and the appeal.  The client is only likely to note the differences if the lawyer points them out.  And if the lawyer doesn’t see them, the lawyer cannot point them out.  Under these circumstances, the only time many clients are likely to seek an appellate attorney is if the client is genuinely displeased with the trial lawyer’s services.

However, I think this situation is changing over time.  I suspect that clients, like all consumers, are becoming more and more knowledgeable all the time about the services they receive.  The inquiries I receive from lay readers of my blog tell me that clients are learning that there is a difference between trial work and appellate work.

Clients almost always want a specialist when one is available.  An employment discrimination plaintiff doesn’t seek a personal injury lawyer when a plaintiff’s employment lawyer is available.  Over time, I expect more and more clients will seek new representation on appeal, and won’t need their trial lawyers to put them on notice of the differences between trial and appellate work.  They will challenge their trial lawyers’ unspoken assumption that the trial lawyer is always the right person to handle the appeal.

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

Client parallel: unawareness of appellate specialization

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.”)