While an appeal is a continuation of litigation, it is much different than trial practice.
A gifted trial lawyer knows how to create a compelling story for a jury. With body language, voice inflection, verbal expression, visual aids, and a personal, emotional connection with the client and maybe even the jurors, the trial lawyer skillfully leads the jury through the emotions and thought processes that present the facts in the best possible light for the client.
The appellate lawyer has a different task, suited to different skills, and directed to a different audience. He argues to three judges, not a jury. The judges have probably never seen the appellate lawyer’s client. Everything they know about the case comes from a cold stack of paper, and they may see few or none of the exhibits that were so compelling to the trial jury. They don’t hear the witnesses, and they don’t hear the sarcasm in cross-examination. They see words printed on a page. And when the appellate lawyer finally argues the case in person after submitting the briefs. the presentation is no longer than a half-hour — and often much shorter — even if he trial lasted days or weeks.
Surprisingly, many lawyers don’t appreciate the differences between trials and appeals. Even some very gifted trial lawyers don’t appreciate that appeals require an entirely different approach than trials. Or, trial attorneys knowledgeable about appeals may prefer to stick to trial work, and may appreciate putting their clients in the hands of skilled appellate counsel.
A good appellate lawyer understands his role and that of the appellate court. He recognizes that he’s not arguing to a jury . . . that the court is looking for a mistake made in the trial court, not re-deciding the case. And a great trial lawyer who lacks experience in the court of appeal will generally recommend that the client obtain appellate counsel.
Put your case in the hands of a lawyer immersed in appellate practice . . . familiar and comfortable with the unique role played by the appellate court . . . meticulous in legal research . . . and skilled in legal writing . . . in short, a lawyer who understands the difference between trials and appeals.
I explore these themes in more detail at in a 5-post series. I encourage you to follow that link and read my thoughts on why a new lawyer on appeal can benefit the client. The information presented is as valid for federal appeals as it is for state court appeals. You may also wish to check my answers to Frequently Asked Questions about appeals.
