Article Latham Watkins Why Hire Appellate Attorney by DarrenChaker


Very good details providing reasoning why hiring an appellate specialist is important.

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                                                     With our compliments

                    Appellate Attorneys: Why Hire Them and
                    How to Choose Them
                    By Katherine Mayer Mangan and Colleen Carlton Smith, Latham & Watkins LLP

                    Corporate counsel sometimes ask why                       These judges have observed a few of
                    they should hire a new attorney for an                    the reasons that hiring an appellate
                    appeal when they already have a lawyer                    specialist can save your appeal. Here
                    who knows the case. The answer is                         are some more.
                    simple: You are more likely to win the
                    appeal if you hire appellate counsel.
                                                                              A Fresh, Objective View of
                    Judges -- the people whose opinion                        the Case
                    really matters -- say appellate specialists
                    make a difference. Appellate advocacy                     Appellate counsel come to the case
                    is a skill that not all trial lawyers have.               fresh. They have not been through
                                                                              protracted discovery and trial, which
Reprinted from      “Appellate advocacy is specialized                        can cause biases that cloud counsel’s
                    work,” according to Ruggero J. Aldisert                   view of the case. Appellate counsel
San Diego           in his book “Winning on Appeal: Better                    do not need to defend or justify trial
                    Briefs and Oral Argument.” “It draws                      counsel’s decisions. Appellate counsel’s
Daily Transcript    upon talents and skills which are far                     knowledge of the case comes not from
                    different from those used in other facets                 a hard fought and possibly emotional
December 30, 2009   of practicing law. Being a good trial                     trial, but from the same cold record the
                    lawyer does not mean that you are also                    court will review. Viewing the case from
                    a qualified appellate advocate.”                          the same vantage point as the court
                    Judges also note that trial attorneys                     gives appellate counsel the perspective
                    who prosecute their own appeals may                       necessary to identify the issues to appeal
                    suffer from “tunnel vision.” “Having                      and to persuasively argue those issues.
                    tried the case themselves, they become                    Distance and perspective also enables
                    convinced of the merits of their cause.                   appellate counsel to objectively assess
                    They may lose objectivity and would be                    whether an appeal makes sense at
                    well served by consulting and taking                      all. Unlike trial counsel, an appellate
                    the advice of disinterested members of                    attorney has not invested hundreds (or
                    the bar, schooled in appellate practice”                  thousands) of hours in the case and may
                    (Estate of Gilkison, 1998, 65 Cal. App.                   be better able to deliver the painful,
                    4th 1443, 1449-50).                                       but necessary, recommendation that an

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                    This article is reprinted with permission from the December 30, 2009 issue of San Diego Daily Transcript.
                    Copyright © 2010
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appeal should not be pursued, or that         reflects the concerns of the courts.
certain arguments should be abandoned.
                                              The appellate brief is a unique
                                              document. Do not trust its writing to
Procedural Expertise                          those who have not demonstrated their
                                              ability to craft such a brief.
Appeals are governed by complicated
rules and deadlines that do not apply
in trial courts. Violating these rules        Current Knowledge of the
can, and frequently does, lead to             Appellate Landscape
the dismissal of appeals. Hiring an
appellate attorney who is well versed         Appellate counsel are more likely
in appellate procedures can help you          than trial counsel to follow the trends
avoid procedural traps. Bear in mind          and patterns emerging in appellate
that many critical deadlines occur soon       decisions. They will know what issues
after the entry of a final judgment or        are on the judges’ minds. They will
appealable order. It is wise to consult       know how your case fits into the
appellate counsel immediately upon            patterns. This knowledge enables
learning of an appealable order or            appellate counsel to better select
judgment.                                     winning issues and cogently present
                                              those issues. Attorneys who do not
                                              regularly follow the appellate courts
Expertise in a Special Kind of                may have more difficulty doing so.
Persuasive Writing
Although both trial proceedings and           Molding the Law
appeals involve a mix of spoken and
                                              Clients who appear before the appellate
written advocacy, the written word
                                              courts repeatedly may have special
becomes dramatically more important on
                                              concerns about the overall development
appeal. The briefs frequently determine
                                              of the law. They are concerned not
the outcome of an appeal, so it is critical
                                              only with the case at hand, but with
to hire counsel who knows how to write
                                              precedent that will affect future cases.
persuasive appellate briefs.
                                              Appellate counsel are accustomed to
It also is critical to find counsel with      thinking about the effects of precedent.
proven ability to write to an appellate       They are, therefore, well equipped to
panel, as opposed to a trial court.           analyze institutional clients’ questions
Appellate briefs are not the same as          about the overall structure of the law
motions or briefs in the trial court.         and how a particular appeal will mold
As one court noted, the “appellate            the law. Appellate counsel can also
practitioner who takes trial level            help a client decide whether pursuing
points and authorities and, without           a particular appeal is likely to produce
reconsideration or additional research,       an undesirable precedent. They can
merely shovels them in to an appellate        also help a client pursue a long-term
brief, is producing a substandard             strategic vision for shaping the law.
product” (In re Marriage of Shaban,
2001, 88 Cal. App. 4th 398, 408, 410).
                                              Appellate Counsel Can Help
Appellate attorneys persuade without
using ploys like emotion or strident          Even Before the Appeal
rhetoric. Those techniques may work in        Many clients do not think about hiring
a trial but will only irritate an appellate   or consulting appellate counsel until an
judge. Rather, appellate counsel              appeal is pending. Sometimes that is too
persuade with succinct logic, effective       late. Appellate counsel can help make
use of authorities, and arguments that        sure all important appellate issues are

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raised and preserved at trial. Attorneys    attorneys to be meticulous and dogged
who handle appeals also are often           in their research. No client wants to
skilled at drafting law-intensive major     attend an oral argument and hear the
motions, such as demurrers or motions       dreaded question, “Why didn’t you
to dismiss, summary judgment motions        cite this controlling case, counsel?”
and trial motions. A well-crafted motion    Good appellate counsel will uncover
can produce an order that will hold         all relevant legal authorities and
up on appeal. In addition, appellate        understand how those authorities affect
counsel can assist in posturing the case    your appeal. Unlike at trial, where
for appeal by framing critical post-trial   the broad contours of the law may be
motions. Appellate attorneys also can       sufficient, on appeal, every nuance can
help protect corporate assets through       matter.
bonding and stay procedures. What
should you look for in appellate counsel?
                                            Ability to Work With Trial
Once you decide to hire appellate           Counsel
counsel, you will be faced with a slew
of attorneys who claim they handle          Although effective appellate
appeals. The following will help you        counsel must retain objectivity and
identify an attorney who will provide       independence, most successful
you the advantages discussed above.         appeals arise out of a good working
                                            with relationship with trial counsel.
Appellate experience: Look for attorneys    Collaboration between trial and
who spend most of their time litigating     appellate counsel can help ensure that
appeals. These practitioners will know      the client’s goals are met and that the
the appellate courts and landscape; they    case is litigated cost effectively. Trial
will know appellate procedure; and          counsel can also be helpful in explaining
they will have honed their appellate        to appellate counsel the motives of
advocacy skills. Ask whether any of         opposing counsel, what is not in the
the attorneys who will work on your         record, and why it may matter.
appeal clerked for an appellate judge.
An appellate clerkship can provide an
attorney with invaluable insight into the   Proper Staffing
appellate process.                          Find out how your appeal will be
Persuasive writers: Try to find attorneys   staffed. In “Making Your Case: The Art
who write persuasive appellate briefs.      of Persuading Judges,” Justice Antonin
The written brief is the most important     Scalia and Bryan Garner described
part of an appeal. In fact, the appellate   the all-too-common method of staffing
court may not even grant oral argument      appeals and its problems: “Every judge
in your appeal. Ask to see samples of       is familiar with the embarrassing and
appellate briefs. A good brief should be    distracting spectacle of a senior lawyer
engaging, easy to understand and well       at the rostrum butchering an appeal
supported factually and legally.            while a capable junior sitting at counsel
                                            table, more knowledgeable on the
Independent thinkers: One of the
                                            facts and law of the case, writhes in
main assets appellate counsel brings
                                            discomfort. The client may think the
is a fresh perspective. To get the most
                                            senior partner is doing a fine job, but the
benefit from their vantage point,
                                            court knows better.”
good appellate counsel must be able
to think independently and not be           In an appeal, the principal authors of the
swayed by the history and passions          brief and the person arguing must know
already present in the case. Meticulous     the record and the law cold. Do not be
researchers: You want your appellate        afraid to let a capable young attorney

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who has mastered the record and the          Mayer Mangan is a member of
law, and who has demonstrated that           Latham & Watkins’s Supreme Court
he or she can handle the appeal, take        and Appellate Practice Group and the
a lead role. Similarly, do not hesitate to   director of the Appellate Litigation
demand that the seasoned senior partner      Clinic at USD School of Law. Carlton
dig into the record and do original          Smith is also a member of the Supreme
research.                                    Court and Appellate Practice Group and
                                             has extensive experience litigating state
In sum, whether you won or lost in the
                                             and federal appeals.
trial court, wise corporate counsel should
assess the added value of specialized
appellate counsel. The relatively
minimal additional expense is often
worthwhile -- whether the objective is
preserving a victory or reversing defeat.
Take the judges’ advice on this one.


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