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Analyzing Appellate Specialists in Litigation

This is the first part of a two-part series on appellate specialists in litigation.

I n the United States, many states (e.g., California, Florida, and Texas) offer specialist certifications in appellate practice, and when appealing a decision, general counsel and even trial attorneys are increasingly turning to such certified attorneys, rather than keeping the same lawyers used at trial.

The existence of appellate specialists is, curiously, exclusive to the United States. In the United Kingdom, apart from a handful of barristers attempting to carve out a niche as criminal appeals experts, barristers and solicitors practicing solely in appellate law are difficulty to find. In Canada and Australia, although specialist certification programs exist, none are available for appellate law. And in civil law systems, apart from certain appellate courts that require specialist lawyers, litigation lawyers conduct both trials and appeals.

This series looks at experts in appellate litigation — the firms and lawyers who exclusively work on appeals. We explore their existence and whether it makes sense for litigants, in the United States or elsewhere, to turn to a new set of lawyers on appeal, given that briefing a new team requires the added cost of educating a new team about things the existing team already knows much more intimately. In this article, we will examine the differences between appeals and trials, and in the second, we will examine data from the recent history of civil appeals in California (USA).
Appeals are quite different from trials, and apparently require different skills.
Appeals, as a review of a decision of an inferior tribunal, are different from trials by their very nature.

The biggest difference in the United States is the absence of a jury.

The biggest difference between trial and appeal proceedings in the United States is that a large part of the value of a trial lawyer is related to the lawyer’s handling of the jury. First, trial lawyers need to to ensure a jury not unfavorable to their client is empaneled and then, on questions of fact, they need to convince the jury of their client’s version of events. Juries, being ordinary people and not trained legal decision makers, are often persuaded by emotional appeals and often do not rely strictly on matters of logic and reason that judges that sit on appeals do.

This means that trial lawyers employ different modes of persuasion than appellate lawyers. On appeal, briefs assume greater importance because of the absence of a jury. This means that written skills become more important, and suggests that more academically minded lawyers might perform better.

The presence of juries in civil trials is largely unique to the United States. Most other major common law systems (including the United Kingdom, Canada, and Australia) rarely rely on juries in civil matters. And they are not used at all in civil law systems in relation to civil proceedings. This may explain the absence of appellate specialists outside the United States. Albert Ounapuu, a barrister in Australia, notes the following about the effect on the absence of juries in Australia:
“Trial proceedings are conducted as bench trials before a judge alone and require the same sort of advocacy, persuasion and skill in written submissions as that required in appeals, which are often heard by judges who were once judges in trial courts.”

Trial lawyers lead evidence to develop a case theory while appellate lawyers focus solely on legal arguments

The next difference is the content of the disputes. At trial, the case is being heard the first time and as such, the parties lead evidence to establish facts supporting their case. Appeals, by contrast, are reviews of previous decisions, with questions of fact having already been established as proven or not proven by the original decision maker. Most common law legal systems defer to the original decision maker’s judgement by refusing to permit those findings from being overturned and by limiting argument on appeal to questions of law, or the application of the law to the version of events already established.

This means that a trial lawyer’s skill in preparing witnesses, and the theatrics of cross-examining an opponent’s witnesses, are somewhat unnecessary on appeal. Appellate lawyers instead hone their skills in convincing a judge. They learn to excel at being concise with his or her argument, whether on paper or when arguing before the appellate panel (where time limits may be imposed), and knowing when to focus on one argument and to drop another.

These differences persist in common law systems outside the United States.

By contrast to the United States and other common law systems, in civil law systems, where parties may seek a review on points of law or appeal, there is less deference shown to the original tribunal. We asked Ralf Willer, a senior associate at Hengeler Mueller (Berlin) and the former Chair in Civil Law, Company Law and European Civil Law at the University of Potsdam about this difference: “Deference is shown on reviews of points of law, which are focused solely on the application of the law, but on appeal, appellate courts may consider new facts or to admit new evidence.” This similarity between trials and appeals helps explain the absence of a body of appellate specialists in civil law jurisdictions.

Appellate procedures are different

Procedures on appeal are also very different to procedures at a first instance hearing or trial. In common law jurisdictions, appeals are sometimes discretionary (i.e., appellants have no right of appeal) and courts and tribunals often require certain thresholds to be met before allowing a party to appeal. Trial lawyers that are unfamiliar with these procedures can cause a party to fail at the first step before any substantive consideration of the appeal.

Again, by contrast, in civil law systems, subject to small exceptions, appeals are available as of right and procedures are very similar to those that apply to trials. Dr. Ralf Willer of Hengeler Mueller adds:
“Although certain of the highest civil law courts, for example, the Federal Court of Justice (Bundesgerichtshof, Germany) or Cassation Court (Cour de Cassation, France), only allow specialist counsel to appear before them, the similarity between procedures is reflected in the 1990 decision, in 1990, to abolish special appeals counsel in France, allowing ordinary counsel to appear in appeals.”

Stay tuned for the second part of this series, where we examine data from 28,000 proceedings in California to see how effective appellate specialists. 

About the Author

Kelvin Tran is CEO and general counsel of Litimetrics Inc.

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