In my many years on the Supreme Court of Georgia, I found that appeals can be deathtraps for inexperienced lawyers. That's just one of the many reasons I believe that today many sophisticated clientsand trial lawyersare turning to appellate specialists to assist them with their cases.
It's important to note that specialized appellate lawyers aren't there to steal your client. They are hired for the express purpose of doing what they do best: winning appellate cases.
Whether hired to serve as counsel of record or as consultants to assist with the preparation of briefs and argument, lawyers are finding the expertise of specialized appellate counsel to be an invaluable asset at every stage of litigation.
In fact, the mere presence of specialized appellate counsel at trial often aids in the settlement process by sending the message to opposing counsel that you are fully prepared to prosecute or defend an appeal. Additionally, during the pre-trial process and at trial, a specialized appellate lawyer can assist with preserving issues for appeal, developing the evidentiary record, and drafting jury instructionsall matters that can have a large impact on an appeal.
Immediately after the trial of a case, when crucial decisions are being made regarding post-trial motions and filing the appeal, the timely input of a specialized appellate lawyer is critical. And, of course, on appeal, appellate counsel's expertise in appellate procedure, standards of review and persuasive written and oral advocacy is valuable beyond measure.
For the wiser party this expertise is a necessity and can, I have found, increase the likelihood of a successful outcome.
The recognition and importance of appellate litigation as a specialized practice area is reflected in studies analyzing the growth of the appellate bar in recent years. Appellate judges also recognize that appellate and trial litigation are wholly distinct forms of advocacy requiring very different legal skills.
"Appellate advocacy," as federal district court Judge Laurence Silberman once stated, "is, in essence, a business for legal intellectuals," and "a specialty all to itself." It involves applying the law to the facts in the trial record and analyzing the policy implications and precedential effect of the appeal.
Judge Kenneth Yegan of the California Courts of Appeal wrote that trial counsel handling an appeal often experience "tunnel vision" that causes them to lose sight of the big picture and, consequently, impedes their ability to effectively advocate for their clients. He suggested that counsel contemplating an appeal "would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice."
I, too, came to believe, when I was on the bench, that appellate specialists can provide a much-needed, fresh, objective perspective on an appeal. This is particularly true when such a specialist is hired after trial because these experts are in a unique position to view the evidentiary record for the first time, just as the appellate court will do when hearing the appeal.