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"I've never understood why people hire appellate counsel."

August 5, 2019

I'm paraphrasing.  But that was essentially what Judge Christopher Droney of the Second Circuit Court of Appeals told a room full of appellate litigators at our last meeting of the Connecticut Bar Association's Appellate Advocacy Section.  Why?  Because no one will ever know a case quite like the lawyer who spent a week of her life trying it and the better part of several years working the file up to that point.

 

Judge Droney has a point.  Trial entails not just transcripts and exhibits that another lawyer can pick up and read, but also off-the-record conversations between counsel and judge, telling reactions by judge or jury at key moments of testimony, and a wealth of memoranda and outlines prepared to aid in trying the case but never filed, to name a few.  An attorney who missed all that and who swoops in after trial to handle the appeal has an awful lot of catching up to do.  

 

So why do sophisticated clients keep hiring appellate counsel?  It happens so often that Reuters published an exposé of this dirty secret:

 

https://www.reuters.com/investigates/special-report/scotus/

 

The short answer is many state and federal appellate judges, when asked, believe hiring appellate counsel helps. 

 

I can think of a few reasons why.  For one, frequently appearing before the Court or even just keeping abreast of its decisions offers insight into its values and concerns.  A habeas case from four years ago may seem irrelevant to your contract dispute, but its lessons may still weigh heavily on the Justices' minds.  Second, from articulation to  preservation, appellate practice has an outsize share of procedural traps that may doom an otherwise winning appeal.  Third, appellate litigation is in many ways a different language than trial litigation, in how issues are most effectively framed and presented.  It helps to have someone who is used to speaking it.  Fourth, the record on which you can rely on appeal is a small slice of everything trial counsel knows.  That extra knowledge can be dangerous, because it often colors how we view and assess the more narrow appellate record the appellate judges will see.  Finally, a fresh set of eyes is an aid in itself, and may spot issues or more persuasive framings that prove decisive on appeal. 

 

Working with trial counsel in this process is critical.  They are a wealth of information and a comrade in arms.  I suspect the mistake that Judge Droney has seen most often is appellate counsel who thinks they can go it alone.  And that, I tend to agree, is a mistake.

 

 

 

 

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