Saturday, January 16, 2016

Civil Trial Lawyers Should Not Handle Their Own Appeals

When I was a boy, there was a prominent sign in the family business that said "When you're the fastest gun in the west, don't get into a knife fight."  Though I didn't understand what the sign really meant, its wit has stuck with me all these years.  Towards the beginning of my legal career, I heard the same message in a language that lawyers can easily understand: "General practice is Malpractice."

The point is that cowboys, salesmen, and lawyers all need to stick to what they do best.  When they come across a task that is not in their wheelhouse, they need to delegate that task to someone who specializes in it.  I do this all the time when someone asks for help with a DUI ticket or a will.  Trust me, you do not want my help with a DUI ticket or a will.  You will end up paying me a lot of money to educate myself on an area of the law that is completely foreign to me, and I still might screw it up.  Instead, I will refer you to a DUI defense or probate specialist.

Many civil trial lawyers think that they should handle their own appeals.  They figure "I took this case, I pled this case, I conducted discovery, I got this case past summary judgment, I convinced the jury to find for my client; why shouldn't I defend the appeal?"  They ignore that appellate practice and trial practice are very different specialties.  Take it from Wisconsin Court of Appeals Judge Gary E. Sherman:

What are your thoughts on the state of appellate practice in Wisconsin right now? 

The best briefs I get are from the appellate division of the State Public Defender and the appellate specialists at the Department of Justice. These lawyers write briefs over and over and over again and most of them are quite good at it. I think there is something to be said for practice. 

So you’re saying that those briefs are better than most of the briefs you read? 

Yes, in fact, as you know, a lot of times, people who are good trial lawyers think that somehow that means they’d be good at appellate advocacy and that’s just not true. I mean, there’s a completely different skill set in being a trial lawyer. Which is basically an oral, or verbal, skill set. Fast on your feet, think quickly, keep a lot of stuff in your mind thing. Whereas appellate advocacy is, of course, written, but not just written but slow. Everything has to be thought through very carefully, all the I’s dotted, the T’s crossed. Every single argument that we’re willing to respond to, we call it developed argument, has to be fully supported by citations, both to the record, for the facts, and, to mandatory authority for the law. That is not how trial lawyers have to think. They are not doing that day after day in the courtroom. So, some of the most disappointing briefs that we get are from larger firms. I’m not going to name any names. It boggles my mind that all of the big firms don’t have, on staff, appellate writing specialists.     

Regardless of whether your clients won or lost at trial, you need to start preparing for the appeal.  If you do not regularly practice in the appellate courts, you have to find someone who does as soon as possible.  This is particularly true if your clients lost, as you have just twenty days after the verdict to file the motions that will preserve your clients' appellate arguments.

I have regularly prosecuted and defended appeals over the past ten years.  I know how to preserve, develop, and support winning appellate arguments.  Please contact me at so that we can discuss your clients' post-trial options.

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