APPELLATE ENGAGEMENT: Why and When You Should Retain Appellate Counsel

Robert Mandel

By Robert A. Mandel

Robert A. Mandel is co-founder of Mandel Young plc (www.mandelyoung.com), a Phoenixbased appellate law firm. Known for his potent advocacy, Rob routinely appears in business, constitutional and public law disputes pending in the federal and state appellate courts, where he handles appeals of final judgments, preliminary injunctions and other interlocutory decrees, petitions for writs of certiorari (review) and mandamus (special actions), certified questions, motion practice, and the representation of amici curiae. Rob also is retained as appellate counselor-in-residence, working collaboratively with litigators to optimize their cases for trial and appeal and undertaking primary responsibility for critical projects, including dispositive motions.

My law partner and I are often asked if and when trial counsel should turn to an appellate lawyer to handle the post-judgment and appellate phases of a case. It will surprise none of our loyal readers to learn that we usually answer these questions with an emphatic “yes” and “promptly.” We are appellate lawyers.

Self-interest aside, experience demonstrates that the earlier an appellate lawyer is brought into a case, the greater the likelihood of overturning an unfavorable judgment (or preserving a favorable one) either in post-judgment motion practice, or through a special action, or on appeal.

One could write extensively on this subject matter, and many have, but it really is that simple.
Although many litigators in Arizona—indeed, throughout the nation— routinely turn to appellate counsel for assistance, others have not had the opportunity either to fully consider the matter or to experience working with appellate counsel. I address my thoughts to those of you in the latter category. Consider the following sentiments that I have heard expressed:

1. A court is a court. My years of experience writing motions, presenting oral argument and trying cases in the trial court makes me eminently qualified to handle an appeal.
2. I am better suited than a stranger to the case to handle my client’s appeal, as I have lived with it for years and understand the law and the record better than anyone else could.
3. The appellate judges who will read my briefs and hear my oral argument will be so moved by my passion and rhetoric that they will find in favor of my client and reverse (or preserve) the judgment.

If you subscribe to one or more of these views, you are not alone. Nor should you be ashamed. These notions are not facially preposterous. They’re just wrong.

Your experience in the trial court is not transferable to the appellate court. While the differences between trial and appellate courts are too numerous to treat exhaustively here, one need only consider the issue from the perspective of procedure to begin appreciating the point. As a trial lawyer, you undoubtedly have spent years acquainting yourself not only with the procedural rules that govern the conduct of litigants in the trial court, e.g., the Federal Rules of Civil Procedure, but also with the judicial gloss on those rules and the commentary of recognized legal experts. You rely on those rules, cases and secondary authority extensively in your practice. You even litigate about them when necessary.

Now ask yourself whether you are at least equally conversant in the rules of procedure that apply in the state and federal appellate courts. If you are an Arizona trial lawyer, for instance, how would you assess your familiarity with the Federal Rules of Appellate Procedure or the Ninth Circuit Rules, or with the Arizona Rules of Civil Appellate Procedure, the Rules of Procedure for Special Actions, or the Rules of the Supreme Court? This is to say nothing of the unwritten rules—the special conventions and informal procedures that are very much a reality of appellate practice. Are you up to speed?

An appellate lawyer is immersed in the aforementioned appellate rules as well as the decisional law interpreting and applying them. He probably has the multivolume treatises devoted exclusively to those rules and decisions sitting on or near his desk because he consults them so regularly. The appellate lawyer is conversant in these rules because she knows that failing to understand them could be lethal to her client’s cause. You can think of it this way: if the trial court is Canada, the appellate court is Africa. Your knowledge of the terrain in the former will be of no use to you in traversing the latter.

Furthermore, however counterintuitive it might seem, your knowledge of all that transpired in the case prior to the appeal is more likely to hinder your client’s cause than to advance it. The hallmarks of persuasive appellate advocacy are objectivity and focus. While your involvement in the case from day one undoubtedly leaves you more familiar with the record than anyone else, it is equally true that over familiarity with the case can fatally impede your ability to stay fixed on the record, which is all the tribunal will consider, and to select only the issues and arguments likely to persuade an appellate judge.

Moreover, although propounding arguments draped in emotion is the trial lawyer’s stock-in-trade, it is counterproductive on appeal. You are taught as a trial lawyer to express yourself passionately in order to persuade the jury to adopt your client’s position. That’s terrific advice. But expressing your client’s arguments emotionally to the appellate tribunal will be seen as a sure sign that you have little faith in the strength of your client’s legal position. Appellate counsel is skilled at expressing the client’s arguments crisply and dispassionately, both in prose and orally. He knows from experience and training that this is what appellate judges expect.

Engaging counsel experienced in the unique rules and practices of the appellate forum will almost always benefit your client, or save it the expense of an appeal that, upon sober analysis, is deemed unworthy of pursuing.