Many think of appellate attorneys only after a court case has been won or lost at the trial level, but ensuring from the start that your trial team includes an attorney with strong appellate expertise can translate into real savings for your bottom line. Hiring an attorney with deep appellate experience protects the investment you make at the trial level and strengthens your position should you choose or face an appeal.
Consider a sample of the special skills that appellate attorneys provide to ramp up return-on-investment:
Picking Your Battlefield
If you or your business face serious legal and financial exposure in a case, ensuring that your trial team includes an appellate attorney to counsel as to where to bring a case (when there is a choice) can impact the potential for appeals. For example, it is very difficult to appeal an arbitration decision, so selecting arbitration versus court litigation necessarily restricts the potential for any successful appeal – depending on your case, there may be strategic reasons to limit appeal and select arbitration (if you can). In terms of court selection, there may be more than one choice, including federal or state, and one state’s laws and precedent could be far more favorable to your case than another state’s. Such breadth of knowledge from the inception of a case is invaluable. Litigators with strong appellate experience see the entire forest, not just the trees (and weeds) of trial.
Making Your Record
Appellate courts rarely look outside the “record,” meaning the transcripts of testimony and evidence presented during trial. Arguments or objections that could have been made but were not are usually lost and cannot be made on appeal (“waived”). Many litigants are surprised to learn that they do not have a solid appeal because their trial attorney did not make the proper motions or objections, or introduce key evidence, during trial. Attorneys with comprehensive knowledge of the appeals process not only have a deep understanding of legal principles and process at the appellate level, but also know how to increase the likelihood of success on appeal by creating a good record and ensuring that all appealable issues are preserved and not waived. Trial attorneys with appellate experience can also create opportunities for “interlocutory” appeals – appeals of certain issues before there is a final judgment.
Assessing Your Likelihood of Success on Appeal
Whether you have won or lost at the trial level, there are many factors to consider. If you won, the other side may appeal and your choices are limited: defend the appeal or try to settle. If you lost, even if the trial court got something wrong, your likelihood of success on appeal may be limited by the discretion afforded to fact-finders. Even when reversible error on case-determinative issues gives you the highest likelihood of success on appeal, the cost of pursuing an appeal may outweigh the cost of satisfying judgment. Litigators with appellate expertise provide neutral assessment of all of these factors.
Understanding Business Considerations
A legal case is more than an argument under applicable facts and law – it is also a cost-benefit analysis. Litigators with strong appellate experience will objectively advise as to not only the likelihood of success on appeal, but also as to the impact of an appeal on certain business considerations – not just your bottom line, but the potential for precedent impacting your business in the future. Appellate attorneys should objectively assess your case and understand your business objectives to counsel whether to appeal (if an option), defend an appeal, or settle, taking you to the best possible result within a complex framework of rules and timelines.
Knowing the Audience
Appellate attorneys put themselves into the shoes of an appellate court judge. What are the issues on appeal, why are they important, and why are some issues not worth appealing? A witness may have lied, but an appellate court will defer to the fact-finder that was in the courtroom to assess the credibility of that witness. You may have had a winning argument, but if it was not made at trial you likely cannot make it on appeal.
A good appellate attorney objectively assesses the record, spots the strongest arguments for overturning or affirming the decision below, understands precedent and any public policy implications and presents well-researched and compelling arguments to the appellate court, both in written briefs and at oral argument.
Presenting your best arguments on appeal requires a nuanced understanding of how appellate judges think. Select an appellate attorney who not only deep dives into research and is a strong and persuasive writer, but who anticipates the other side’s arguments and, more critically, intuits the issues most important to the appellate court. Less is often more, both in terms of selecting the issues to appeal and in writing concise and compelling briefs. At the end of the day, a good appellate advocate tells and sells your story.
“Appellate records are longer than they once were, and oral arguments are more compressed, but even in the electronic age, the essential art of appellate advocacy – and of appellate judging too, I believe – has remained constant.” Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S. C. L. Rev. 567, 570 (1999). Because appellate advocacy is most certainly an art form, it pays to carefully select your artist.
(Leanne Murray Shofi is Special Counsel at Pastore in Stamford, Conn., with 20+ years of litigation and appellate experience within the Connecticut and New York state and federal courts.)
