On Reluctance to Engage Appellate Counsel
Why don’t some trial lawyers or their clients engage appellate counsel when it comes time for the appeal?
That's the question my blogging cohort Greg May has posed over at the California Blog of Appeal. Greg has begun a series of posts in which he examines the reasons commonly provided when trial lawyers or their clients are faced with an appeal and choose not to engage appellate counsel. The entire series is available through this link.
Greg has put a lot of thought into these posts and will be putting up more as time permits. Thus far, he has covered some reasons why trial lawyers think they should handle their own appeals—broadly stated as those related to ability and those related to economics—as well as some of the potential pitfalls that come into play in that scenario. Overall, I agree with his view that plenty of trial lawyers have the tools to handle appeals, but for various reasons would rather not or simply shouldn't.
I'd like to add something to the discussion, In my view, an appellate specialist brings three things to the table that trial lawyers and their counsel don't always appreciate fully:
- knowledge of and familiarity with the appellate-court system, rules, and players;
- special training and skill in the art of written and oral appellate advocacy; and
- a dispassionate, neutral viewpoint helpful to an honest evaluation of the case.
Greg has also covered a client consideration that parallels some trial lawyers' belief that appellate work is "just litigation." The following comments were particularly thoughtful:
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.
As Greg adds items to the series, I'll make a point to post about them here.
Thanks for the mention and the kind words, Todd. Part 3 should be posted later tonight or tomorrow.