Why Hire an Appellate Attorney?

If you have reached the stage of needing an attorney to help you with an appeal, then you either had a trial attorney below, or is often the case in our economic climate, you handled the case on your own. Why do you need another attorney? 

The assistance of an appellate attorney, including at the early stages of a case before it has ripened into an appeal, can be invaluable. The appellate attorney should know what needs to be in the record for appellate review. He or she can also provide valuable assistance in preparing post-trial motions.

In reviewing an appeal, the Court of Appeal is generally limited to the contents of the record below. As a general rule, theories or issues not raised in the trial court cannot be asserted for the first time on appeal. If it isn’t in the court record, then it does not exist to the Court of Appeal. Although there are rare instances when something not in the record can be added, don’t take any chances and jeopardize your case.

Your trial attorney is often focused on making a persuasive oral presentation to the court or a jury. I have often heard trial attorneys boast, "Just get me in front of a jury and I will win!" Handling an appeal is more of an intellectual exercise, focusing on the facts and the law. The briefs have to be persuasive as the appellate attorney does not have an opportunity to make his or her arguments at a hearing until almost the end of the case.

An appellate attorney can also provide a fresh, objective analysis of your case. Your trial attorney may have worked on your case for several years. In that time, he or she may have developed personal feelings about your case that can color a decision to appeal. Trial attorneys may be thoroughly familiar with superior court procedures but the Court of Appeal is another forum that has its own set of procedures. Unless the attorney practices regularly in appellate courts, he or she might not know rules that can trip up a party.

To sum it up, an appellate attorney can provide a fresh set of eyes on your case and give you an objective analysis, free from personal feelings. The appellate attorney will know the procedures used at the appellate level and perhaps even know the personalities of the justices reviewing the appeal. Having a good reputation and credibility with the Court of Appeal is also important.