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Should Trial Lawyers Handle Their Own Appeals?

by William L. Pfeifer, Jr. on February 16, 2011

in Appeals

A question that arises in appellate law practice is whether a trial lawyer should also handle the appeal of a case. This is a complicated issue that deserves more than the simplistic answer it is usually given, and really depends on both the appellate experience of the attorney as well as the specific situation involved in the case. There are some situations where it is perfectly natural for trial counsel to press on with handling the appeal, especially if the trial lawyer is experienced in handling appellate cases. In other situations, the start of the appellate process is the time for trial counsel to step aside and let a different attorney look at the case from a new perspective. This is sometimes referred to as letting another lawyer look at the case “with a fresh set of eyes.”

There have been a few occasions when  appellate courts have commented on the issue of whether trial lawyers should do their own appeals. Most of those court opinions have recognized the specialized nature of appellate work, and have indicated that appellate argument is best left to those who do it as their primary law practice. A couple of particularly interesting comments from appellate courts are shared below. While the cases are not from Alabama, the comments directly address the issue of whether a trial lawyer should also be the attorney for the appeal.

In the case of Estate of Gilison, 77 Cal. Rptr. 2d 463, 467 (1998), the 2nd Appellate District of the California Court of Appeals stated:

“We also observe that trial attorneys who prosecute their own appeals, such as appellant,may have “tunnel vision.” Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice. We suspect that had appellant done so they would have advised him not to pursue this appeal.”

In another appellate court opinion from California, the 4th Appellate District further addressed this issue at great length. The observations of that appellate court on this point are so insightful, they merit being posted in full below. In In re Marriage of Shaban, 105 Cal. Rptr. 2d 863 (2001), the appellate court stated:

“Appellate work is most assuredly not the recycling of trial level points and authorities. Of course, the orientation of trial work and appellate work is obviously different (see generally Eisenberg, et al, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2000) If 1:12, pp. 1-2 to 1-3 [noting difference between determination of case on merits and examination for error] ), but that is only the beginning of the differences that come immediately to mind.

For better or worse, appellate briefs receive greater judicial scrutiny than trial level points and authorities, because three judges (or maybe seven) will read them, not just one judge. The judges will also work under comparatively less time pressure, and will therefore be able to study the attorney’s “work product” more closely. They will also have more staff (there are fewer research attorneys per judge at the trial level) to help them identify errors in counsel’s reasoning, misstatements of law and miscitations of authority, and to do original research to uncover ideas and authorities that counsel may have missed, or decided not to bring to the court’s attention.

Additionally, because there is no “horizontal stare decisis” within the Court of Appeal, intermediate appellate court precedent that might otherwise be binding on a trial court (seeAuto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937) is not absolutely binding on a different panel of the appellate court. So, in appropriate and rare cases, appellate court precedent is open for reexamination and critical analysis. Along the same lines, appellate counsel must necessarily be more acutely aware of how a given case fits within the overall framework of a given area of law, so as to be able to anticipate whether any resulting opinion will be published, and what effect counsel’s position will have on the common law as it is continuously developed.

Then there is the simple matter of page limitations. Appellate courts are more liberal than trial courts as to the number of pages counsel are allowed. (Cf. Cal. Rules of Court, rule 313(d) [limit of 15 or 20 pages for trial level points and authorities without necessity of obtaining permission to exceed limit] with rule 15(e) [limit of 50 pages for appellate briefs without necessity of obtaining permission to exceed limit].) Granted, the extra length of the “briefs” in appellate and reviewing courts is not always a good thing (cf. 9 Witkin, Cal. Procedure (4th ed.1997), Appeal, § 600, p. 634, quoting King v. Gilder sleeve (1889) 79 Cal. 504, 507, 21 P. 961 [“`the learned counsel may not have had time to prepare a short brief’”] ), but the difference does mean that appellate counsel will have much more freedom to explore the contours and implications of the respective legal positions of the parties. Part of that exploration may mean additional research that trial counsel simply will not have had the time to do.

Finally, because the orientation in appellate courts is on whether the trial court committed a prejudicial error of law, the appellate practitioner is on occasion likely to stumble into areas implicating some of the great ideas of jurisprudence, with the concomitant need for additional research and analysis that takes a broader view of the relevant legal authorities. The instant case is a perfect example, involving as it does the complex interrelationship between the parol evidence rule and the statute of frauds, and the limits placed by the statute of frauds on the concept of incorporation by reference.

The upshot of these considerations is that appellate practice entails rigorous original work in its own right. The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product. Rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value. Ahmad’s appellate counsel’s notion that opposing appellate counsel’s task was merely to “simply change the trial points and authorities into an appellate format” is not well taken.”

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