The first question is whether a client needs an appellate attorney or whether the trial attorney should handle the appeal. Many trial lawyers are perfectly good appellate lawyers, and in many cases it makes sense for the client to keep the same lawyer. But in many cases the the client would like a different lawyer to work on the appeal or the trial lawyer does not want to handle the appeal.
Here are some of the things a client should consider when deciding whether to hire an appellate lawyer.
APPELLATE SKILLS
The skills necessary to do trial work are very different than the skills necessary to do appellate work. Trial lawyers must generally be charismatic, speak well, and tough. A trial lawyer must do a lot of talking. Depositions -- probably the most important discovery tool -- are conducted orally. Most motions are argued orally. And of course the trial is largely oral questions and answers. Also, during litigation in the trial court, a lawyer must often negotiate with opposing counsel over discovery disputes. It is often critically important to have a tough negotiator as a lawyer.
In contrast, appellate lawyers must be good writers and clear thinkers. An appeal is decided almost entirely on the legal briefs. An appellate lawyer must review the record, research many legal issues, and write a clear and convincing legal brief. There is not very much talking involved. There is no discovery. Oral argument is generally short, and most appellate judges have already largely decided the outcome of the appeal based on the legal briefs. Also, other than settlement discussions, there is not much negotiation between the attorneys during an appeal. There are no discovery disputes, and the parties simply file their respective briefs.
Thus, the skills necessary to be a good appellate lawyer are very different than the skills necessary to be a good trial lawyer. Some lawyers may possess all of these skills and be excellent trial lawyers and appellate lawyers. But some excellent trial lawyers might not like or be good at legal research and writing.
EXPERIENCE AND KNOWLEGE
Appellate experience and knowledge of appellate procedure are also important. The type of arguments that can be made effectively on appeal are very different than the type of arguments that can be effectively made on appeal. Also, appellate procedure is different than trial court procedure. Some trial lawyers have handled numerous appeals and understand the process well. But others have handled very few appeals and might not understand the appellate process as well.
A NEW PERSPECTIVE
It often makes sense to have a lawyer with a fresh perspective review the case. An appellate lawyer might see things that the trial lawyer might have missed, might downplay a less effective argument the trial lawyer made, or might emphasize facts or arguments the trial lawyer thought was less important. However, the trial attorneys who handled the case in the trial court is already familiar with the case and understands what happened at trial. An appellate lawyer will often require more time -- at an additional cost -- to review the trial court record.
As discussed above, an appellate lawyer should be able to write well and think clearly, and should have a good understanding of, and substantial experience with, appellate procedure.
In evaluating an appellate lawyer, a potential client might consider
Of course, another important factor to consider is the fees the appellate lawyer will charge.
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