Appeals and the Importance of Appellate Advocacy
An experienced and skilled appellate advocate should handle appeals. There are special skills involved in effective appellate advocacy. 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 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 a number of lawyers that advertise or otherwise hold themselves out as having substantial experience in appellate advocacy. As in any other field, there are some attorneys who practice in the area who are more effective than others. However, by and large, the attorney that who handled the case in the lower court is going to be better off having a new attorney handle the appeal. A new set of eyes on the case and someone who has substantial experience as an appellate advocate is the key to success. 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.
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