On Reluctance to Engage Appellate Counsel,  Series

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.