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.)