Henriod
You lost. After years of litigation—cumbersome discovery, numerous pre-trial motions, and a contentious trial—the jury ruled against you. You have important decisions to make.
Accept the Result or Appeal?
Statistically, very few appeals are successful. The appellate courts will assume that your trial was fair enough and that sufficient evidence justified the judgment. Consider accepting the result and moving on, which at least avoids further attorney’s fees.
But, it may be worthwhile to appeal if a mistake of the trial judge genuinely prevented a fair trial, or if even the worst facts against you simply cannot justify the outcome.
Should you Retain an Appellate Specialist?
In smaller cases, you may want to stick with your trial attorney, who is already familiar with the case and may be able to handle the appeal at lower cost. Some trial attorneys are also good appellate lawyers.
Reversing a judgment is difficult, however, and requires different expertise. An experienced appellate lawyer may increase the odds of success.
Advocacy in the Higher Courts Calls for a Particular Expertise
Examining the Case from the Perspective of the Appellate Court. An appellate lawyer brings a “new set of eyes.” Trial attorneys may become so passionate about the case and its merits that they can no longer take an objective view. An appellate attorney will analyze your case as the appellate court will see it, and strategize accordingly.
Selection of Issues to Raise. A winnable appeal can be lost if the attorney fails to select the strongest issues or raises too many. Appellate specialists understand the different standards of review. They constantly study the law as it evolves to be aware of areas that interest the appellate court. The higher court is more likely to give full attention to fewer issues than to many.
Writing is Everything. Although the quality of written submissions in the trial court is important, on appeal, it is nearly all that matters. An appeal entails only two written briefs—and, if you are the party responding, only one brief. Every word must count.
Understated advocacy works best. A quality brief confronts the issues coolly, honestly and logically, guiding the reader toward victory. A winning brief focuses on the issues with academic depth and detail, while being meticulously organized, succinct and easy to read.
The Precious 15 Minutes of Oral Argument. A party usually has only 15 minutes to talk, no matter how complex the case, how important the issue or how high the stakes. There is no margin for error.
Attorneys may commence with points they wish to highlight. But the judges will raise questions that focus on different issues. So, the attorney must know the record cold and be able to shift gears with ease and respond under fire.
A common mistake made by trial lawyers is to address the appellate judges as they would a jury. Ninth Circuit Judge Alex Kozinski has pointedly criticized that approach: “When a lawyer resorts to a jury argument on appeal, you can see the judges sit back and give a big sigh of relief. . . [We] know, and you know we know, that your case doesn’t amount to a hill of beans, so we can go back there in the conference room and flush it with an unpublished disposition.”
Should you Retain an Appellate Attorney Before Trial?
In some cases, it may be clear even before trial that an appeal is inevitable. It may be wise to involve an appellate lawyer early to “make the record.” Two fundamental concepts about appeals must be remembered. First, a party cannot complain on appeal about an issue that it did not raise below. Second, appellate courts do not accept new evidence; anything you wish the appellate court to consider must be submitted first in the trial court. So, especially in complex cases, it may be wise to have a member of the trial team dedicated to focusing on the potential appeal.
As an added benefit, having a separate lawyer to focus on appellate issues frees the trial attorney to focus on the primary objective—winning in the trial.
Daniel F. Polsenberg, partner and Joel D. Henriod, partner, Lewis Roca Rothgerber
