Appellate Law

On Reluctance to Engage Appellate Counsel, Part 2

By D. Todd Smith

Following up on this post, Greg May at the California Blog of Appeal has completed the third and fourth installments of his series discussing the reasons trial lawyers or their clients choose not to engage appellate counsel.  The entire series is available through this link.

Greg's third installment addresses the trial lawyer's age-old point, "No one knows the case better than I do,” and offers some compelling reasons why that isn't necessarily an advantage on appeal.  Greg's commentary made me think of the "forest for the trees" problem that all lawyers face after living with a case too long.  Your mind plays tricks on you, and after a while, you just stop seeing things for what they are.  Better to have a fresh set of eyes on the problem as you take it to another level of review.

The fourth post looks at substantive-law specialization and client-side expertise as possible impediments to hiring appellate counsel and reaches much the same conclusion.  Sometimes, even an expert in a technical area such as intellectual property or in the client's particular industry isn't the right person to take a case up on appeal, at least not alone.  In the end, the best approach may be to work as a team, with lawyers of different skill sets each adding value to the process.

Whatever the backdrop, lawyers are controlling by nature, and it's counter-intuitive to hand a case off when you've got years of blood, sweat, and tears invested in it. That's why relationship-building between trial and appellate lawyers—and, let's not forget, clients—is so important.  The trial lawyer and client need to trust that the appellate lawyer will handle the case appropriately, and the appellate lawyer needs to deliver on that trust.  Repeat that process enough times, and the reluctance to retain appellate counsel diminishes.

Full post as published by Texas Appellate Law Blog on October 27, 2008 (boomark / email).