An Appellate Advantage

Litigants often wonder why they should hire separate appellate counsel. Trial counsel may be tempted to handle the appeal because of their familiarity with the facts of the case.  Why bother?

The expertise required to handle a writ or appeal is unique from the skills required to successfully litigate a case.  

Trial lawyers who prosecute their own appeals…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.” (Estate of Gilkson (1998) 65 Cal.App.4th 1443, 1449-1450.)

How does appellate and trial work differ? In its famous decision, In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408-412, the Fourth District Court of Appeal answered this question:

  • Craft – Unlike 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.”
  • Orientation – Because “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.”
  • Scrutiny –

    appellate briefs receive greater judicial scrutiny than trial level points and authorities.”

  • Precedent – Where appellate court precedent is open for reexamination and critical analysis, “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.”
  • Exploration  – Because of additional page numbers given to appellate briefs, “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.”