AN APPEAL TO REASON

In my last blog, I talked about how trial attorneys are different from appellate attorneys. Now, let's consider how appellate attorneys are different from trial attorneys:

Appellate attorneys tend to work far from the glare of the courtroom. Except for the creative flair they impart to their briefs (or even at oral argument), winning or losing an appeal is not dependent on the attorney's charisma. The appellate attorney is "appealing" to a different audience, one that might not be so easily swayed by emotional pleas. (One attorney I know claims that appellate attorneys are the intellectuals or "eggheads" of the legal profession.)

Even though appellate attorneys can be creative in fashioning their briefs, they are limited to creating a story or legal argument based on an existing record. They are dependent on (or stuck with) the record created by the trial attorney. At the appellate level, the written briefs are much more important than the eventual oral argument. In fact, by the time the attorneys appear for oral argument, the justices have been reviewing the written briefs for months. Some justices have admitted that oral argument will result in a change of their opinion less than 5% of the time. (Since you don't know if you fall into that small group, it is never wise to waive oral argument, especially if you are representing the appellant.)

So, in essence, appellate attorneys are usually late to the case while the trial attorney is there from the beginning. Even so, the attorneys must work together. All too often, however, the trial attorney fails to involve an appellate attorney at the trial level and fails to consider the need to create a record that will allow the appellate attorney to make a persuasive argument either in support of or against the findings below.