Appellate Advocacy

The “outsider’s perspective” theory illustrated in the extreme

I’ve mentioned before that one of the valuable things an appellate lawyer can bring to your case is the “outsider’s perspective” — the ability to give the case an objective look that trial counsel is often unable to see because of close involvement in the case. What the appellate lawyer might see as the best grounds for appeal may differ wildly from what the trial lawyer thinks is a good basis for appeal.

A trial lawyer that develops tunnel vision on a case usually does so because of his deep involvement with the case over a long period of time, resulting in a personal emotional and intellectual investment in the case. But the tunnel vision can be even more acute when the trial lawyer is a specialist in the substantive area of the law particular to the case. Thus, while an appellate lawyer can bring a fresh angle to almost any case, it may be even more likely the appellate lawyer can do so if the appellate lawyer is relatively new to the substantive law at issue.

That may seem counterintuitive, but I’ve got some high-powered opinion on my side. In today’s Recorder, there’s an excellent article on how experienced Supreme Court appellate lawyers are making inroads into the highly specialized practice of arguing patent cases before the U.S. Court of Appeals for the Federal Circuit. Given my feelings about the benefits of the outsider’s perspective, it’s not hard to see how I was hooked by the opening paragraphs:

Carter Phillips remembers how his patent litigator friends reacted when he asked the U.S. Supreme Court to do away with automatic injunctions upon findings of patent infringement.

“The look of horror and dismay in their faces was startling, because ‘it’s always been that way at the Federal Circuit,’ ” the Sidley Austin partner recalled.

But the Supreme Court shocked the patent bar in 2006 by ruling in eBay v. Merc Exchange that traditional rules of equity apply. Phillips believes his perspective from “outside the fraternity” of patent lawyers helped win the case.

Talk about your outsiders! But it gets better, with a statement from another practitioner, Joshua Rosenkranz, that might appear self-contradictory in the abstract:

“I feel very strongly that you need to start at ground zero with any court and explain to them the technology and explain why the rules that you’re advocating make sense,” Orrick’s Rosenkranz said.

“Ignorance,” he said, “is strength.”

That might be going a little too far in some cases. Ignorance is not so much strength that an appellate lawyer should necessarily venture into completely unfamiliar and specialized territory. It’s worth noting that all of the lawyers profiled in the article work closely on the appeals with the patent litigators — the kind of “team up” approach I advocated in a post long ago in other substantive areas of the law where the trial lawyer is a specialist. One featured practioner notes that each new case makes him feel “dumb” until he reaches an epiphany. Another notes, “[Y]ou have to be unafraid to ask the stupidest questions.”

So if you’re a trial lawyer who thinks your prospective appellate counsel just doesn’t seem to know the field as thoroughly as you’d like as quickly as you’d like, consider that may not be such a bad thing. I’m not saying, of course, that you should trust an appellate attorney who can’t seem to grasp even basic concepts in your specialized area. But your prospective appellate counsel’s intellectual curiosity, even if it appears to betray a lack of expertise in nuanced areas of the substantive legal field or technology at issue in a given case, may be a manifestation of the outsider’s perspective that is so valuable in an appellate counsel. You might be surprised at how that appellate lawyer can shake things up with imaginative, creative — and winning — arguments.