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Very good details providing reasoning why hiring an appellate specialist is important.
ArticleReprint 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 Latham & Watkins operates as a limited liability partnership worldwide with affiliated limited liability partnerships conducting the practice in the United Kingdom, France and Italy and affiliated partnerships conducting the practice in Hong Kong and Japan. Under New York’s Code of Professional Responsibility, portions of this communication contain attorney advertising. Prior results do not guarantee a similar outcome. Results depend upon a variety of factors unique to each representation. Please direct all inquiries regarding our conduct under New York’s Disciplinary Rules to Latham & Watkins LLP, 885 Third Avenue, New York, NY 10022-4834, Phone: +1.212.906.1200. © Copyright 2009 Latham & Watkins. All Rights Reserved. If you wish to update your contact details or customize the information you receive from Latham & Watkins, please visit www.lw.com/LathamMail.aspx to subscribe to our global client mailings program. This article is reprinted with permission from the December 30, 2009 issue of San Diego Daily Transcript. Copyright © 2010 Latham & Watkins | Article Reprint 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 2 Latham & Watkins | Article Reprint 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 3 Latham & Watkins | Article Reprint 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. 4
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