Horvitz & Levy LLP - Why Hire An Appellate Expert?

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	Por qué Emplear un Especialista en Apelaciones
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	DISCLAIMER

Why Hire An Appellate Specialist?

"We . . . observe that trial attorneys who prosecute their own appeals, such as appellant, may have 'tunnel vision.' Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice." (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450.)

Potential clients sometimes ask why they should retain an appellate expert when their trial counsel is already familiar with the case. There are several reasons:

1. Appellate practice requires specialization.

An appellate lawyer's skills are different from those of a trial lawyer. As Justice William Stein of the First District Court of Appeal has noted, the sheer number of pending cases mandates that appeals are "basically decided on briefs . . . if you can't write, you can't win . . . ." (Quibell, Mass Appeal, The Recorder (May 21, 1997).) One law firm managing member has observed: "Appellate brief writing has an unusual distinction in the law: More good lawyers do it badly than just about any other aspect of professional practice." (Rubin, Better Appellate Brief Writing, In Brief (Mar. 1997) 8 The Practical Litigator No. 2, emphasis omitted.)

While good trial lawyers are adept at ferreting out information through discovery, examining witnesses and making spontaneous tactical decisions in court, an appellate lawyer must be especially talented in persuasive writing. On appeal, the focus shifts from developing facts to mastering the record, researching legal principles, understanding subtle distinctions and emerging legal trends, exploring creative analogies and guiding policy considerations that shape the law, and then assembling everything in a concise, persuasively written brief. Since "briefs will almost always decide your case . . . [y]ou should put the kind of effort and skill into writing a brief that a poet or novelist puts into his art." (Pannill, Appeals: The Classic Guide, 25 Litigation 6, 7 (Winter 1999).)

2. An appellate specialist can avoid procedural land mines.

Substantially different procedural rules and deadlines apply on appeal. Not surprisingly, a significant number of appeals are dismissed because counsel was unaware of these special rules and procedures. (See, e.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [failure to provide an adequate record]; Planning & Conservation League v. Department of Water Resources (1998) 17 Cal.4th 264, 274 [appeal untimely]; Shpiller v. Harry C's Redlands (1993) 13 Cal.App.4th 1177, 1180 [appeal from non-appealable order].) Retaining competent appellate counsel will help to avoid potentially disastrous procedural mistakes at the appellate level.

3. Cost-effectiveness.

Appellate specialists can deliver appellate expertise at the lowest possible cost to their clients. At Horvitz & Levy LLP, we achieve these cost-effective results in each case by drawing upon our attorneys' collective and varied expertise in developing and presenting arguments, our intimate knowledge of both the rules governing appellate procedure and the applicable standards of review, and brief banks of research from decades of past appeals in both state and federal courts. We generally staff appeals with only two attorneys — a lead attorney and a supervising attorney — which adds to our ability to keep costs down while at the same time ensuring the highest quality work product.

4. A new perspective is usually necessary on appeal.

Appellate counsel bring a fresh perspective to the case because their knowledge of the case comes primarily from the record on appeal. As a result, they view the case in the same light as the Court of Appeal. This is particularly important since the Court of Appeal decides cases based on what is in the record, not facts or arguments that "might have been" presented in the trial court. As one appellate court recently explained: "Appellate work is most assuredly not the recycling of trial level points and authorities"; the "appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product." (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408, 410) (Read the Shaban discussion regarding the importance of retaining appellate counsel.)

Furthermore, appellate counsel often are more familiar with what issues and arguments are likely to be most successful on appeal. They may have a better understanding of patterns in appellate decisions and "hot" issues pending in the Supreme Court and intermediate appellate courts. And they often have greater familiarity with characteristics peculiar to different panels of justices, and how decisions are made at the appellate level generally.

5. Effective oral argument on appeal is different from oral argument to a jury.

Oral argument is usually the only opportunity during an appeal for a dialogue between the parties and the justices. But an argument that works in front of a jury is rarely effective in the Court of Appeal. As Chief Justice Ronald George of the California Supreme Court has commented: "[E]motional arguments of the type designed to sway a jury generally leave us quite cold, so does the sight of counsel approaching the bench, clutching a script from which counsel does not dare to look up." (Sherman, Chief Justice of California (2d Qtr. 1997) Verdict 8, 12.)