Why New Counsel on Appeal?
You and your attorney have worked together to get a case ready for trial. Trial is on, and the payoff time is near. Your attorney returns to the office with the months of anticipation replaced by a look of defeat. The case has been lost, and must be appealed. The question now is who should do that appeal? The answer should be not the attorney that tried the case, and preferably an experienced and skilled appellate advocate.
The Attorney Who Tried The Case Should Not Handle The Appeal
The attorney who handled the case in the trial court should not take the appeal. The first rule of persuasion is to place yourself in the position of the person making the decision. The attorney that tried the case will not be able to do this. On appeal, the appellate court judges will be reviewing a cold record. A new attorney that did not try the case will be viewing the same record as the appellate court judges. That new attorney will, therefore, be able to place himself or herself in the same position as the decision makers. The trial attorney will never be able to do that.
The trial attorney's perception of the record is usually inaccurate, and reading the record will probably not change those inaccurate perceptions. Every case that is tried is really three cases. The first case is the one the attorney prepared. This case is comprised of the attorney's perceptions based on pretrial interviews and depositions of witnesses. It is the case the attorney wants to present to the trier of fact. The second case is the case the attorney thought he or she actually presented at trial. This case is comprised of parts of what each witness said at the trial, mixed in with the attorney's preconceived notions as to what each witness would say, and heavily salted by what the attorney wanted the witness to say. The third case is what the witnesses actually did say and what the trial court judge did and did not do. It is this third case that will be reviewed by the appellate court, and it is this third case that the trial attorney cannot be trusted to know.
I have had the experience on many occasions of sitting down with the trial attorney to discuss my preliminary views of an appeal. The trial attorney will almost always have a different view of the facts than I have obtained from studying the record. And, almost inevitably, the trial court attorney's view is more favorable to the attorney's client than is the record. This is true because we are all creatures of human emotion, and what we hear and see is substantially influenced by what we want to hear and want to see.
I have participated in many appeals where the attorney on the other side is represented by trial counsel. The opposing attorney will frequently present a view of the facts in the brief and in oral argument which simply does not correspond to the record. The attorney's review of the record had not changed trial counsel's view of what happened at trial, because the lawyer read into the record many of the attorney's preconceived notions of what happened at trial.
An appellate court judge is not going to have any preconceived notions of the case. The attorney that does the appeal should be in that same position to effectively evaluate and argue the case. That requires a new lawyer.
A new lawyer should take the appeal to supply a fresh view of the case. The attorney that tries the case has a vested interest in the case and in the way it was tried. The best of us get tunnel vision once we have spent a substantial amount of time with a case. It is easy for even the brightest and most creative lawyer to overlook a point which seems obvious to a new attorney viewing the case. Having a new lawyer handle the appeal provides this fresh view, and this may make the difference between winning and losing.
The trial attorney may not take the time required to do an effective job on the appeal. Trial counsel may suffer from "burn-out" from the frustration of having spent countless hours and emotional energy on the trial. Trial counsel may not have time to handle the appeal. The effective preparation of an appellate brief requires the use of large blocks of uninterrupted time. This is a luxury that most trial attorneys do not have.
Finally, the trial attorney should not handle the appeal because he or she is apt to be undercompensated for the job. Most trial attorneys will underestimate the amount of fee required to do an effective job on an appeal. Usually, this underestimation is a product of a number of factors. The trial attorney may not have done enough appeals to have the experience to accurately estimate the time required to properly represent the client on appeal. Trial counsel often take more time to do an appeal than appellate counsel because trial counsel is not as familiar with the procedures governing appeals and has not had the experience to develop efficient ways of handling an appeal. Trial counsel may think the job is not as big as it is because of trial counsel's purported familiarity with the record. This kind of thinking is a mistake, as trial counsel must read and summarize the record and strive to overcome preconceived notions of the contents of the record. This is a time-consuming process. Finally, counsel's emotions may prevent the setting of an adequate fee. It is hard to tell a client whose case you have lost that a substantial additional fee must be paid to take the appeal. On the other hand, if you have won, it is easy to overestimate the strength of your own case and underestimate the size of the job that will be required to support the trial court's decision.
An Experienced and Skilled Appellate Advocate Should Handle The Appeal
An experienced and skilled appellate advocate should handle the appeal. There are special skills involved in effective advocacy on appeal. Regular experience as an appellate advocate hones these skills. There is no substitute for regular experience in learning how to adequately digest and summarize a record, isolate the issues from that record, write effective briefs, and make persuasive oral arguments.
There is a body of law, both procedural and substantive, which is unique to appeals. The lawyer who regularly uses and understands these unique laws applicable to an appeal is a jump ahead of the occasional appellate practitioner. The experienced appellate advocate has familiarity with important concepts on appeal like standard of review, which matters may be considered for the first time on review, the intricacies of the preservation of error rules, and matters relating to stay and enforcement of trial and appellate court decisions.
The regular appellate practitioner also has the advantage of knowing the appellate judges. There are relatively few appellate judges. An experienced practitioner has the opportunity to appear before them on a regular basis. Through this process and a regular reading of appellate decisions, the practitioner is able to learn about the interests of each judge and the best ways to convince each judge.
The judge's knowledge of the advocate is of perhaps greater importance than the advocate's knowledge of the judge. An appellate practitioner appears regularly before these judges. The judges soon learn if the practitioner is a person of integrity, what work habits the lawyer has, and the extent to which the lawyer's work may be relied upon. This kind of knowledge on the part of the judges gives the able appellate advocate the standing before the court that the occasional practitioner will not likely have. This doesn't mean the appellate practitioner will always win. It does, however, mean that the appellate practitioner with a deserved good reputation will capture the attention and sincere interest of the court.
Finally, an experienced appellate practitioner will understand what persuades the court. The experienced practitioner will know how to write the statement of the case, what kind of issues will and won't interest judges, how to frame issues so they present legal questions of interest to the appellate court, as opposed to factual questions which will be of no interest to the bench. An experienced practitioner has the courage to limit issues to a few, and the willingness to leave weaker issues on the cutting room floor. In short, the experienced appellate advocate has the skills to improve the chances that the client will prevail.
There are now a number of lawyers that advertise or otherwise hold themselves out as having substantial experience in appellate advocacy. We don't have specialization in the state of Washington, and there is no prerequisite for this kind of representation. As in any other field, there are some attorneys who practice in the area who are more effective than others. However, by and large, your attorney that tried the case is going to be better off having a new attorney handle the appeal who has substantial experience as an appellate advocate. This is true whether your attorney is appealing a loss or trying to preserve a victory. Either side will benefit from the detachment and the skills of an experienced appellate advocate.