By Troy Shelton
As an appellate attorney, my business is understanding the business of trial attorneys. But I encounter recurring misunderstandings about appeals and appellate referrals. Here’s why those beliefs are mistaken.
Misconception 1: If I refer the appeal, I’ll lose the client
Trial lawyers sometimes think this because they misunderstand the business of an appellate practice. In a bustling appellate practice, the client for business purposes is the referring attorney.
Of course, the ethical and professional duties are owed to the actual client. But the client probably won’t have repeat appeals. The person with the repeat appeals is you—the litigator.
Besides, appellate specialists aren’t looking to steal anyone’s trial work. Most became appellate specialists to focus on appeals to the exclusion of trial litigation.
Misconception 2: If I refer the appeal, I’ll miss out on the appellate fun
There’s plenty of fun to go around. Every appellate lawyer appreciates help assembling the record. And we also want your insights on issues best suited for appeal.
Even when it comes to the briefing, I value trial counsel’s careful review of drafts. I want the facts to be impeccably accurate, and you’re the expert on those.
There’s also a chance to help with amicus coordination. Are there other groups that may care about your case? If so, help appellate counsel brainstorm and coordinate with potential amici.
And then there’s the fun part: moots. Most appellate attorneys moot a case before oral argument. I love having trial counsel on my moot panels. You know the weaknesses in your case. Being put through the ringer by trial counsel is invaluable.
Misconception 3: Appellate attorneys are just for the appeal itself
An appellate attorney can help before a notice of appeal is ever filed.
First, in complex cases, appellate counsel may be involved as early as drafting the complaint. Later, appellate counsel can provide firepower for critical motions: motions to dismiss, class certification, and summary judgment.
Then there’s the trial itself. If you’re the kind of attorney who handles high-stakes, high-value cases, you should embed an appellate attorney in your trial team.
One reason is obvious: preservation. In the throes of trial, it’s easy to forget an objection here and a proffer there. Did you put that bench conference on the record? And did you move for a directed verdict? Outsource preservation so you can focus on the evidence.
And then there are the major legal questions dealt with at trial. Sometimes these are anticipated and planned for, like the charge conference, which appellate counsel can lead. Other issues come as a surprise. Appellate counsel can take the lead on these issues and work on bench briefs during the evening if needed, while you prepare for the next day’s evidence. It’s a natural division of labor.
Finally, there are post-trial motions. These are the last chances for preservation. And sometimes a well-considered motion can eliminate the need for an appeal altogether, or at least limit the damage. Let your opponent, who didn’t use an appellate attorney, worry about cross-appealing from the grant of your post-trial motion.
Misconception 4: I don’t need an appellate attorney because I can reuse my trial brief
I’ve heard this before from the referring attorney who lost, which came as a shock. Why assume a losing trial brief will become a winner on appeal?
The premise is that the trial judge wasn’t bright enough to get it. But the more plausible explanation is that the message wasn’t received because it wasn’t clear. I’ve seen losing trial court briefs that had all the right pieces to the puzzle, but they were all out of order. To win on appeal, we need to bring clarity and focus on our strongest points.
And that’s before even taking account of the standard of review. A killer trial court argument fizzles out on appeal when the error is reviewed for abuse of discretion. Part of the appellate toolkit is pairing the best arguments with the least deferential standards of review.
The other great value of an appellate lawyer is giving you a fresh perspective on how to present the case. I know this value firsthand. Although my own practice is almost entirely appellate, I occasionally have my own trial court case with an appeal. When you’re the trial attorney, you can be blind to which points are salient and which are clutter.
For that reason, I always have someone else from our appellate team involved with appeals in my own cases. There’s no just escaping the blinders without an independent look from a dedicated appellate attorney.
Troy Shelton is an appellate partner in Raleigh at Fox Rothschild LLP. He partners with trial attorneys to win on appeal in state and federal courts.