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Why hire an appellate attorney?

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Appellate litigation is representation of a party before a higher court. If a party loses a case in a trial court, for example, he may be able to ask an appellate court to review the trial court’s decision for any errors that could warrant reversal of the trial court’s decision. An appellate lawyer is uniquely qualified to advocate on behalf of a litigant in that review process.

Why not just use your trial counsel? He or she already knows your case after all?

The skill sets of a great trial lawyer and a great appellate lawyer are different. Trial lawyers are great at talking to juries. Their focus tends to be on their courtroom presence, their ability to persuade those not well versed in the law, and developing the facts of a case (through discovery, presentation of evidence (such as witness testimony and documents) and cross-examination of an opposing parties’ witnesses.

On appeal, the audience is very different. Rather than a jury or a single judge, a panel of judges (usually 3) hears and decides a case on appeal. Written argument is paramount.  The implications of a court’s ruling on other cases and nuances in the law take on much greater significance at the appellate level. An experienced appellate attorney is skilled at communicating to this specialized audience.

A skilled appellate attorney also knows how to analyze a case from the perspective of an appellate court—by objectively reviewing the cold record and applying the appropriate standard of review (some of which are more deferential to the trial court than others). It is often very difficult for the attorneys who presented the case to the trial court to have the same level of objectivity, and often their perspective of events is very different from what is borne out by the record. And, on appeal, the court’s consideration is limited to what is in the documented record that is sent from the trial court to the appellate court.

As one (now retired) appellate judge once recognized in explaining why most of the time it is “well-advised” to bring in an appellate lawyer to handle the appeal: “[T]he lawyer who handled the trial is often unable to discern the appellate forest from the trial trees. Issues that consumed the trial lawyer are often of marginal significance at best on appeal; issues that seemed trivial during trial may become critical on review.”

The appellate court cannot reweigh the evidence , so the skills of a trial lawyer in developing facts before a judge or jury are not needed at the appellate level. Rather, the facts decided at the trial level (assuming there is competent substantial evidence to support them) are the facts for purposes of the appeal, which focuses strictly on errors of law by the trial court.

Appellate proceedings also have their own procedural rules, deadlines, and customs with many traps for the unwary. This is foreign territory for attorneys who do not regularly practice in appellate courts.

If you are considering an appeal of a trial court’s decision, or if you won at the trial level and the losing party is filing an appeal, consider using a law firm with a dedicated appellate practice such as Losey PLLC.

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