I have found the client usually benefits from an ongoing relationship between the trial attorney and the appellate lawyer. Like the general practice doctor and the specialist to whom the doctor refers a patient, if the doctor does not communicate or collaborate well with the specialist as the case progresses, the patient suffers. A team approach, combining the trial attorney's personal familiarity with the trial proceedings and the appellate specialist's expertise, is most likely to both save money and yield a favorable appellate outcome.
ADVANTAGES OF APPELLATE CONSULTING BEFORE AND DURING TRIAL
Trial attorneys must take appropriate steps in response to trial court errors in order to "preserve" them as appellate issues. On the other hand, trial attorneys, unsure when they have done enough, sometimes over-protect the record, repeatedly raising the same issue to preserve it when further reference to it is unnecessary. This both wastes time and needlessly irritates and antagonizes the trial judge or jury. Consultation with a certified specialist in appellate law can help trial counsel strike the proper balance between vigorous advocacy and obstruction.
If serious errors occur during trial, trial counsel benefits from consultation with an appellate law specialist in deciding whether to pursue a prejudgment writ to the court of appeal. Approval is discretionary, so it is important that trial counsel works with someone who knows what sort of showing may incline an appellate court to intervene.
PREPARING YOUR CASE BEFORE AND DURING TRIAL FOR AN APPEAL
I consult with trial counsel in trial preparation and during trial in the following areas, with potential appellate review in mind:
- Discovery motions
- Evidentiary issues and motions in limine
- Jury instructions and related disputes
- Disputes over voir dire and closing arguments
- Dispositive motions and responses
- Interlocutory (pre-judgment) writs
- Trial brief preparation to preserve critical issues for appeal
Trial counsel with whom I consult benefit from my qualifications and experience. I am certified by The State Bar of California Board of Legal Specialization as a specialist in appellate law. This, in addition to my decades of experience practicing law, qualifies me to help trial lawyers position their cases well for appellate court review. How well the stage is set at the trial level often determines the result on appeal.
LITIGATING YOUR CASE ON APPEAL
The Formalities of an Appellate Brief
In addition to the inevitable expectations of organization, clarity, sentence structure, grammar and brevity, California's appellate rules and the local rules of the courts of appeal impose an elaborate system of formalities on appellate briefs. Briefs that meet these expectations are likely to receive more respectful consideration than those that do not, and this can play a part in the outcome.
As a consulting certified appellate law specialist, I collaborate with civil trial attorneys who have an upcoming or ongoing case in our courts of appeal. My services may involve trial counsel associating with me or substituting me as appellate counsel. Either way, I can provide valuable assistance with all aspects of the appellate process, including:
- Reviewing and editing your appellate briefs, motions and oppositions
- Identifying and assessing potential merit of issues for your appeal in light of the appropriate standard of review
- Establishing that “prejudice” resulted from errors during trial, when necessary to ensure the availability of appellate relief
- Drafting arguments in the manner that is most likely to resonate with an appellate court
- Avoiding procedural missteps.
- Effectively utilizing legal research tools to develop your strongest arguments
Trial counsel with whom I consult benefit from my qualifications and experience. I am certified by The State Bar of California Board of Legal Specialization as a specialist in appellate law. This, in addition to my decades of experience practicing law, qualifies me to help trial lawyers obtain the best possible appellate outcome.