|
|
The selection of appellate counsel is an important
decision, one that is often misunderstood because the differences between
trial and appellate counsel are rarely delineated with clarity. Trial courts
and appellate courts, although in the same universe, revolve around a
different center of gravity. Great trial lawyers are able to master and
understand a morass of facts and convince a jury or fact finder that those
conflicting facts should be interpreted one and only one way, that
credibility is owed to one and only one party, and that righteousness
belongs with one side. Great appellate lawyers must posses and employ a
different skill set to reach a similarly successful result.
The appellate lawyer cannot re-litigate facts. The facts are set in stone.
There is no discovery and no ability to ask a witness one more question.
Rather than focus the facts through arguments laden with emotion, the
appellate lawyer must understand how to funnel the established facts through
the appropriate legal prism to get the best result. That can require
abstracting the relevant legal principles to varying degrees of specificity
or generality to allow the same facts to take on differing amounts of legal
significance. Or that can require recognizing the policy drivers that
animate the appellate bench so that your legal arguments maneuver around
those policy drivers appropriately.
Standards of review - the prism through which appellate courts review a
trial court's decision - are pitfalls for the unwary. Appellate courts do
not and will not conduct a plenary review of many trial court decisions and
factual findings. As such, trial courts are accorded deference on many
decisions. This deference can be difficult to overcome on appeal, but it
cannot be overcome by re-arguing the facts, an error often made by
inexperienced appellate counsel. Fluency in the myriad applications of
deferential standards of review and experience in navigating them is
critical. In addition, a common approach for some trial lawyers - throwing
out every conceivable argument that may appeal to a jury - is a disaster on
appeal. The more time appellate counsel spends on marginal arguments, the
more likely it is that the judges will miss the good arguments. Besides,
appellate judges are generally loathe to believe that the trial court did
not do a single thing correctly, so picking the few, narrow issues that
stand a realistic chance of success on appeal is crucial to establish
credibility.
For this reason, United States Supreme Court Justice Robert Jackson long ago
warned attorneys of this cardinal rule of appellate advocacy: "Legal
contentions, like the currency, depreciate through over-issue. The mind of
an appellate judge is habitually receptive to the suggestion that a lower
court committed an error. But receptiveness declines as the number of
assigned errors increases…Multiplying assignments of error will dilute and
weaken a good case and will not save a bad one."
Generally, the decision of a trial court only affects the litigants before
the court. But when an appellate court is publishing the same decision, it
will affect an entire State or numerous contiguous states. As a consequence,
the ripples that flow from certain decisions immediately have a level of
significance that is not present when one stands before the lone trial
court. Understanding how to maneuver within this framework, and retool or
refocus trail court level arguments that do not account for these ripples,
is critical. That is, molding the law is essential. Our appellate lawyers
are particularly adept at using creative analogies and underlying policy to
thread the law in a particular appeal through the right needle.
|
