Louisiana Appellate Attorney - Court of Appeals Lawyer

Why Hire an Appellate Specialist

The decision whether to employ an appellate attorney should not be made once the trial is over, but once litigation begins. Unfortunately, most litigants wait until after a trial, when the losing party has much at stake emotionally and financially, and the winning party is hesitant to celebrate, fearful an appeal will reverse a long-awaited verdict.

Part of deciding whether to appeal or whether to prepare for an appeal is choosing to continue the fight with trial counsel " Don't change horses in midstream "- or whether to select a new legal leader with different skills. This decision is as important as deciding whether or not to appeal. The right lawyer at trial is not necessarily the right lawyer for an appeal and vice-versa.

While a good trial lawyer's commanding presence, knack for connecting with jurors and passionate summations may persuade a trial court or jury, these same qualities will often fail at the appellate level because the roles are reversed.

On appeal, counsel must first present the case in writing. This is a sharp contrast from the trial where connecting with jurors or the judge is most important. Only then, must the attorney be prepared to verbalized why the court should reverse the verdict. The same applies to the winning side. Thus, a victorious trial lawyer, whose pizzazz, charisma and oral advocacy in persuading a jury or judge to accept his view of the facts may often fail to convince a panel of appellate judges why he was initially right.

Therefore, when assembling your legal staff for trial, it is crucial to have an appellate attorney on board from the beginning, assisting trial counsel in formulating the issues, spotting out the potential issues which could result in an appeal and ensuring that objections are made to erroneous rulings to preserve the issue for appeal.

Litigants often wait too late. Hiring appellate counsel early brings the right skills to the case, along with a fresh prospective of an attorney who is not necessarily emotionally tied to a case. An attorney who focuses on appellate practice brings a distinct perspective to a case, often employing deep and creative legal analysis that will yield a more favorable result.

This result starts at the beginning of the case with the first motion. An appellate attorney, who is a writing specialist - as compared to the trial lawyer who is an oral advocacy specialist - can prepare trial briefs and motions, writs and drafts of proposed jury instructions with expertise and an eye toward appeal. Since the first impression an appellate panel has of the case is from the written word - the brief - as compared to the spoken word - oral argument - it is crucial the issues are properly formulated in the trial court. This provides a consistent presentation of a litigant's position and prevents a court from wondering why a party has suddenly shifted arguments in midstream.

An ability to write clearly is essential to making the appeal court understand why a verdict should be affirmed or reversed. Since most cases are decided without oral argument, the initial brief (an appealing party may have the opportunity to respond to his opponent's brief) is all the appellate judges will rely upon in deciding the case. Further, even in those case with oral argument, most judges make up their minds after reading the briefs.

Because appellate attorneys are keenly aware of these realities, they place a premium on clear writing. Most of an appellate judge's day is spent reading the trial record, the briefs and prior decisions. A clearly written brief which logically explains why a verdict or trial court ruling is either correct or incorrect is refreshing, and goes a long way toward persuading the judge to see the case your way.

In this regard, framing the issues becomes one of the most important roles of the appellate counsel, hence the adage: " If I can frame the issues, I can win the case." Certainly this is not always the case, but more often than not, it is the brief which precisely and clearly states the issues has the attention of the judge. To best ensure this happens, it is critical to engage the appellate attorney early in the process, preferably from the onset of the matter, but certainly no later than immediately before the trial.

Too often clients change attorneys in midstream and are often disappointed when told by the appellate attorney, " I am bound - and the court is bound - by the record as it exists. No more, no less." Too often clients want to spend several hours of the appellate attorney's time to explain why the judge returned a particular verdict or why the judge ruled a certain way only to be told that trial counsel never objected so the issue could be reviewed on appeal.

Sometimes, the best reason to hire an appellate attorney is to avoid an appeal. Appellate attorneys are experts at dissecting complicated matters and complex legal theories. This ability may assist trial counsel in insuring the court has a clear understanding of the issues so the correct legal ruling is made, even if the ruling is against a particular party.

Thus, hiring the appellate attorney to assist the trial counsel becomes crucial, especially since most trial court rulings on motions are made strictly upon the memorandum or brief and without the benefit of oral testimony.

Obviously most parties must operate within a budget making it cost prohibitive to engage the services of both a trial counsel and appellate counsel. Yet, the additional cost of adding an appellate specialist on the trial team often becomes minimal to the amount of money that can be lost when a complex case or high-stakes personal injury action goes awry. By then, the " horse is out of the barn" and not only will the litigant face the cost of the trial, he now faces either a lost verdict for a severely injured client or for the losing party, must pay an enormous judgment for case in which the damages were minimal. And in the corporate context, imagine having to pay millions or face losing millions when a recalcitrant jury renders an unexpected verdict. To complete the analogy, at this point, the litigant has literally not only lost the horse, but may have "bought the farm."

While appellate counsel are not cheap, there are several cost-effective ways to make them part of the team. If the case is the kind the trial counsel takes on a contingent basis, make sure as part of his agreement of representation he will associate an appellate counsel. In other type cases, use an alternative billing arrangement by hiring the appellate specialist for certain tasks, such as preparing a motion for summary judgment or preparing jury instructions. These tasks are finite and are more suitable for a fixed-fee arrangement as compared to open-ended litigation.

In the end, it is best to return to the beginning by having an appellate attorney on board from the outset to "look ahead" and help trial counsel set a road map for success. Setting the groundwork with clear and precise legal reasoning and written presentations will ultimately result in a victorious verdict and the avoidance of an appeal or for the losing party, reservation of issues to review by the appellate court.