Appeals and Litigation Analysis

More than just my briefs/

2005-05-06T21:05:00.000-07:00

[this is a post in progress, but I wanted to get it out there since I'm jsut starting up]

As an appellate lawyer, I am frequently struck by how many of my colleagues believe my job is confined to drafting briefs and presenting oral argument in the reviewing courts. The presumption is that an appellate lawyer has no role until a trial is complete or judgment otherwise rendered in the trial court. I respectfully disagree.
When litigation is contemplate or commenced in the trial court, few would question the value of having experienced trial counsel involved early on. Experienced trial counsel can foresee the evidence and testimony likely to develop at trial and understands the necessary pretrial maneuvers that can help to ensure that the evidence and testimony reach a jury in their most persuasive (or least damaging) form. Skillful discovery, strategic in limine motions, and careful voir dire of a potential jury can greatly improve the chances of a successful outcome long before the jury is sworn. In some cases, a well-planned pre-trial strategy can eliminate the need for a trial altogether.
The same sort of advanced planning is equally valuable to ensuring victory on appeal. All too often, appellate counsel is first called in after trial is already complete. In handling the appeal, the appellate lawyer is confined to the record already generated in the trial court. A case that has been masterfully crafted in terms of presenting evidence to the jury may lack the elements necessary to persuade an appellate panel.
Appellate counsel and trial counsel naturally see things from different perspectives – which is precisely what helps each to do his or her job well. A trial lawyer looks at facts with an understanding of the impact these facts will have on a jury’s willingness to render a particular verdict or an opponent’s willingness to consider a settlement offer. An appellate court, however, will never hear the quiver of witness’s voice that might lend emotion to otherwise dry testimony. The appellate court will never see the shifty-eyed evasion that might discredit a well-prepared, articulate witness. Once a case is on appeal, this sort of detail is subsumed by the highly deferential treatment a reviewing court affords the jury’s credibility determinations.
An appellate lawyer, therefore, must envision how a given set of facts will appear once they are reduced to the flat black and white of an appellate record. A jury may have little regard for any number of dry or technical details. But appellate counsel will know that getting these facts onto the record is crucial to preserving a favorable (or reversing an unfavorable) judgment. Trial counsel may recognize that his melodramatic opponent is improperly grandstanding for the jury – appellate counsel will appreciate the reviewing court’s reticence to second guess the trial judge about something the appellate court has no direct knowledge. Appellate counsel can often be quite savvy in constructing idea for making the record. Collaborating with appellate counsel early on can save everyone headaches down the road.
I am lucky to work with a number of trial attorneys who appreciate the value of working together with appellate staff early on

Choosing your battles.

2005-05-03T13:39:00.000-07:00

As a parent, I have learned (sometimes a little too slowly) the importance of "choosing your battles." When we get caught up in (or worked up about) the details, it's easy to lose sight of the big picture. And that's when we get ourselves into trouble.

Today I got a decision back -- a win for me. The details are unimportant. What struck me, upon reflection, was the thought that it might have been a tougher decision for the court had my opponent simply focused on the sufficiency of the evidence issue that was at the core of her argument.

In addition to the sufficiency argument, however, she tacked on an argument that our trial counsel had engaged in improper closing argument. Not only was it difficult (for me, and apparently the appellate court as well) to imagine how the alleged impropriety could possibly have prejudiced her client, but the challenge was waived because no one objected and the issue was not raised in a post-trial motion. To ice the cake, my opponent tried to argue around waiver by accusing the trial judge of barring objection during closing.

I understand that sometimes you are forced to make the tough argument and sometimes you have to find a creative way around a waiver problem. But it struck me that, had my opponent simply abandoned the improper closing argument -- which was going nowhere -- she might have preserved a bit more credibility on the more significant issue in the case.

Would it have made a difference? I like to think that the skill of our trial counsel in building the record and my skill in applying reasoned analysis would have won the day in any event. But you never know. It's a sound lesson in choosing your issues wisely.

Welcome

2005-05-02T09:15:00.000-07:00

This blog is a work in progress. There are a number of wonderful blogs (or "blawgs," if you must) addressing legal issues and practice. But I wanted one that was more specifically directed to the practical ins and outs of appellate practice. I'm still not sure what all that will entail --writing tips, thoughts on marketing, jurisdictional pitfalls? I look forward to input, if anyone has any!