Why Hire or Associate Appellate Counsel?
The expertise of an appellate attorney is different from that of a trial lawyer. A good trial lawyer is adept at raising or defending every factual or legal issue that may successfully resolve the case through pleadings, discovery, motions, negotiation, and trial. A good appellate attorney will focus the appeal on essential issues, perform rigorous research, and navigate the subtle distinctions in the law with the broader view as a constant guide. She is adept at written advocacy as the great majority of appeals are decided on the parties' briefs.
At least one court has observed that "trial attorneys who prosecute their own appeals . . . may have 'tunnel vision.' Having tried the case themselves, 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." California Court of Appeal, Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-50.
For a more lengthy discussion on the distinctions between trial and appellate practice—and the advantages of hiring appellate counsel—read the following portion of an opinion from the same court, in a different matter:
"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 . . . , 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 . . . 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.
. . . .
"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. . . . 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 King v. Gildersleeve (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 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."
In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409-10.
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