How do appellate attorneys fit into the picture?

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.

All attorneys are not alike

To fully understand how trial attorneys can assist in the appellate process, one must appreciate the differences between trial attorneys and appellate practitioners. Why is that helpful? Well, the appellate attorney may become part of the trial team and an understanding of how he or she works may help in communicating and dividing tasks.

Before the trial attorney comes along, there are no transcripts or records. It is up to the trial attorney to create them. The trial attorney must take a naked set of facts presented by the client and attempt to weave them into a coherent story. This story must be persuasive to a jury or the court. The trial attorney's work - whether taking depositions, appearing for motions or trying a case - is done in a public forum. He or she may be more concerned with the big picture, i.e., how an accumulation of those facts may affect the jury or judge. Trial attorneys interact constantly with people, and their job, to a large extent, is dependent on the spoken word.

Trial attorneys tend to be risk-takers, especially if they are hired on a contingency fee basis. They are willing to take cases, knowing there is a possibility they will lose and not get paid (not to mention the expenditure of costs on the client's behalf). A case may rise or fall on a jury or the court's impressions of the personalities of the trial attorneys and their clients.

In the next post, we'll take a look at appellate attorneys.

A cautionary tale about stipulated judgments

What can a plaintiff do when the trial court guts your case, leaving you to face the music at trial without your most valuable claims?

In Wisely v. State, 2007 WL 4105562, appellants made the wrong choice, resulting in the loss of their appeal. They filed a class action on behalf of prison visitors who were subjected to an intimate encounter with an X-ray machine They claimed the machine, which could take detailed images of a visitor's anatomy, violated their constitutional rights.

The trial court granted the government's motion for summary adjudication on 10 causes of action, tossing out any claim for damages. That left appellants with a single claim for declaratory and injunctive relief.

Shortly before trial, the parties entered into a stipulation and requested the trial court enter judgment, thus clearing the way for an appeal. The stipulation only pertained to damages, not injunctive relief, and included provisions for continuing jurisdiction upon the renewed use of the machine.

The court of appeal dismissed the appeal, finding it lacked jurisdiction because the stipulation and order did not finally resolve all issues between the parties. As such, it was not an appealable judgment, which is a jurisdictional prerequisite to an appeal

Stipulated judgments are not appealable, because the party is not "aggrieved" and lacks standing to appeal. An exception exists where the consent is given to facilitate an appeal. "[I]t is 'wasteful of trial court time' to require the plaintiff to undergo a probably unsuccessful . . . trial merely to obtain an appealable judgment." (Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 817; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 401-401.) If you decide to take this approach, be sure to make a record that you do not intend to waive the right to appeal.


Appellant loses appeal due to a defect in his notice of appeal

Failing to timely file a notice of appeal delivers a death blow to your appeal.  There is generally no relief from a late notice of appeal; the exceptions are so rare as to be nonexistent.

In Morton v. Wagner, 2007 WL 3277026, the Sixth District concluded Walter Wagner had missed the appellate boat. Considering the facts of the case, it is hard to feel sorry for Wagner, a lawyer, who harassed the respondent, Gail Morton, starting from their law school days in the 1970's!   In 2005, the trial court issued an injunction, requiring Wagner to stay at least 100 yards away from Morton. Wagner moved for reconsideration. Four months later, the trial court denied the motion and found Wagner was a vexatious litigant.

Wagner filed a notice of appeal "from the decision and order . . . denying reconsideration . . ." and the order finding him to be a vexatious litigant. Wagner failed to identify the judgment in his notice of appeal!

The court concluded Wagner failed to appeal the judgment granting the petition for an injunction. The court explained that while a notice of appeal should be liberally construed, "[c]are must be taken in drafting the notice of appeal to identify the order or judgment being appealed so as not to mislead or prejudice the respondent." (Slip Opn., pg. 3.) The court also noted a split of authority as to whether an order denying a motion for reconsideration is separately appealable, with the majority holding it is not.

So, a simple error in failing to properly describe the judgment cost Wagner his appeal. Wagner could have saved his appeal by identifying the order or judgment being appealed, as required by California Rules of Court, Rule 8.100(a)(2), and appealing in a timely manner from the judgment, rather than from a nonappealable motion.

Appellate Assistance at the Trial Level

In a recent article in the L.A. Times, the author, Laura Ernde, noted that more and more trial attorneys are turning to appellate attorneys for help before there is a final judgment. Appellate attorneys can be of great assistance in fashioning motions in limine, jury instructions and special verdict forms. One appellate specialist, Jerry Falk of Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco, described a case where one of his clients lost a $90 million contract fraud case because of a technicality. By the time Falk got involved, there was nothing he could do.

All of the appellate attorneys interviewed for the article noted a change in trial preparation in the last ten years as trial attorneys are willing to seek assistance to prevent errors and make sure they have adequately preserved the record. Big firm practitioners at Reed Smith and Horvitz & Levy in Southern California indicated that bringing in an appellate specialist at the early stages of trial preparation is almost “standard practice.” Small firms should also incorporate this intelligent planning into their trial preparation. This wisdom applies with equal force to motions that can terminate your case, such as a motion for summary judgment, an anti-SLAPP motion, or even a demurrer.

Having worked with trial attorneys, I have often told them of the need to think about the appellate process as they handle their cases at the trial court level. I’ve written articles and spoken frequently on the subject. The problem is that these warnings sound great while the attorney is attending a conference, but the lessons are soon forgotten when the attorney returns to his or her daily routine. I felt there was a need to publish these tips in a format that could be saved and referenced when necessary.

This blog is meant to be interactive. I welcome your comments and experiences. In future blogs, I look forward to having my colleagues and members of the judiciary share their wisdom and experience. Hopefully, this will enable trial attorneys to avoid many mistakes that commonly occur and either win or lose their cases on the merits.