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Counsel on Appeal: A Time to Change Horses?

The legal wrangling that followed the 2000 presidential election was great theater, not only for political junkies but for those who closely follow our legal system as well. Few of us get to see the likes of David Boies, Laurence Tribe and Theodore Olson – some of the finest lawyers around – plying their craft. To have a chance to watch them in action on television, night after night, with the presidency of the United States at stake was a real treat.

For me, one of the most fascinating aspects of the unfolding drama was the decision of what lawyer to send out to handle which proceedings, particularly the oral arguments before the U.S. Supreme Court. From the Gore campaign’s standpoint, the question was do you send to the Supreme Court David Boies, one of the country’s leading litigators and the lawyer perhaps most familiar with what went on in the lower court proceedings, having personally handled much of those proceedings? Or, do you tap Laurence Tribe, the brilliant Harvard law professor who is one of the nation’s most prominent appellate advocates, and who has argued numerous cases before the Supreme Court? (Ultimately, the Gore campaign answered “Yes” to both questions. It sent Tribe to the Supreme Court to argue the first appeal; but, when a second appeal arose a short time later, gave the job to Boies.)

Stripping away the glamour and high stakes that surrounded the election controversy, the appellate aspects of that litigation crystallized a question that clients and lawyers frequently encounter. When significant litigation reaches the appellate stage, who is likely to be the most effective lawyer to handle the appeal: one who concentrates his or her practice on appellate matters, or the lawyer who handled the case in the trial court and therefore is most familiar with the history of the proceedings? Some thoughts as to the pros and cons of each option follow.

Cost Considerations

One of the first factors a client typically will want to consider in deciding whether to utilize a new appellate lawyer or trial counsel is the relative cost of each approach. Usually, leaving the appeal in the hands of trial counsel will be less expensive than bringing in a new lawyer on appeal. That is particularly so when the trial proceedings were lengthy and complex, and a new lawyer would have to spend a large amount of time reviewing the trial record and otherwise getting up to speed on the case. So, some threshold questions that typically arise in deciding who to have handle an appeal are: what is the incremental cost of involving a new lawyer, what is the likelihood that bringing in a new lawyer on appeal will enhance the client’s chances of prevailing on appeal, and does the magnitude of what is in controversy justify the extra expense? Note that these questions can arise both when a client is considering choosing a new law firm to handle an appeal, or using a different lawyer within trial counsel’s firm for the appellate proceedings. Also, the same considerations may arise regardless of whether the client is seeking to overturn the decision in the trial court or defend it. Of course, the client may feel less incentive to consider different counsel on appeal if he or she prevailed in the trial court. However, that should not necessarily lead the client to pretermit all consideration of the factors under discussion.

Perspective

Another pertinent consideration is the differing perspectives brought to the table by each of trial counsel and new appellate counsel. Trial counsel likely will know the case, its intricate details and its history better than new counsel ever will be able to grasp, and that sometimes can be an advantage. Conversely, since the appellate court is a new forum with a different audience, appellate counsel may have a better perspective on how someone just becoming familiar with the case may perceive it. Trial counsel may have lived with the case so long, and be so mired in its details, that he or she may not be ideally situated to sort out what aspects of the case a reviewing court realistically can be expected to deal with. New appellate counsel may be in a better position to focus on the broader themes of the case and present them in a way that can be grasped by a judge who has not had a long history with the case.

These considerations can cut both ways depending on the circumstances. For instance, the perspective factor likely militated in favor of having Boies rather than Tribe handle the second Gore appeal in the Supreme Court. The second appeal arose very quickly after the lower court proceedings, the controversy at that stage was intensively fact-bound, and Boise was intimately familiar with the lower court record. On the other hand, I have seen cases in which counsel on appeal, who also was counsel in the trial court, raised complicated fact-bound arguments which likely were beyond the comprehension of the appellate court and thus may have been counterproductive.

Trial Counsel’s Baggage

A further factor that may bear on who is best situated to handle an appeal is whether trial counsel carries any baggage from the trial proceedings that may impede the most effective presentation on appeal. For example, most trial lawyers can review a record of their exploits and, with the benefit of hindsight, identify aspects of the trial they wish they had handled differently. When the same lawyer handles both the trial and the appeal, raising a particular issue on appeal can call into question the effectiveness of the lawyer’s approach to that issue at trial. For instance, if a lawyer mounts a challenge to a jury instruction, the court of appeals of course will inquire whether the claimed error was properly preserved. If the trial lawyer has concerns that the alleged error may not have been preserved properly, that may militate against raising the issue on appeal. The lawyer may fear that raising the issue may result in criticism of his or her work at trial with respect to the preservation issue. New counsel on appeal is free of this sort of baggage.

Similar dynamics can play out at oral argument. If, for example, an appellate judge raises a question as to the adequacy or propriety of an aspect of the trial, and the lawyer to whom the question is put was trial counsel, he or she may become unduly defensive or tend to formulate an oral argument strategy designed to avoid such questions. New counsel on appeal is likely to be more dispassionate in this context.

Different Skill Sets

A further consideration is the differing skill sets required for effective representation at the appellate and trial levels. There is, of course, a great deal of overlap between the knowledge and skills needed to make an effective factual and legal presentation at each of the trial and appellate levels. But there are differences as well. Effective trial presentation often requires a lawyer who can present a compelling story to the trier of fact, which often is a jury. In contrast, effective representation on appeal may require a lawyer who can delve into complex nuances of the law and spar with appellate judges on arcane legal issues

Conclusion

The lesson to be drawn here is that no single approach is right for every case. One size does not fit all. The criteria discussed above may help in sorting out the best approach under the circumstances of a particular case for enhancing the prospects of prevailing on appeal.