Whether you are a party involved in litigation or are a trial lawyer preparing for trial, one question that you may ask yourself is, “Why do I need an appellate lawyer?” The answer is revealed by the following analogy: If during brain surgery, you suffered a heart attack, would you question why your brain surgeon is consulting with a cardiologist? Of course not. You know your brain surgeon knows everything about the brain. You’ve entrusted him with your life. However, a brain surgeon is focused on knowing everything about the brain, and may not have the ability or desire to keep updated on the latest research and developments that arise in cardiology.
The distinction between trial and appellate lawyers is similar to that of doctors practicing in different specialties. Trial lawyers are experts at building a case from scratch, ferreting out the facts from adverse parties, and presenting evidence in a manner that will persuade the jury or judge. Trial lawyers think on their feet and quickly adjust their presentation to comport with rulings from the bench as they are made. Appellate lawyers, on the other hand, have a different focus. Appellate lawyers view every ruling from the bench as a possible issue for appeal. They are viewing the trial, not as a presentation of facts, but as a compilation of legal procedures and determinations, and are focused on making sure that, if there is an appealable issue or error that arises before or during trial, the error is properly preserved for appeal. The appellate lawyer also knows when an error is immediately appealable, or whether a matter must be taken to the appellate court at the conclusion of the case.
Because of their very different practical focus, appellate lawyers employ a different set of skills than the skills employed by trial lawyers. Successful trial lawyers are adept at keeping juries of non-lawyers engaged and at distilling complex legal concepts into easily-digestible issues. Appellate lawyers, on the other hand, will spend numerous hours alone in the library (or on the computer) researching the complexities of a particular legal issue, and will then prepare a written brief presenting the entirety of their legal arguments on paper. Oral argument, when it is granted, is the only opportunity the appellate lawyer has to appear before the tribunal, and then, the lawyer is speaking to learned appellate judges, not juries. The appellate lawyer has to be prepared to respond to the questions of the panel and discuss, often on a more philosophical level, why the law should be interpreted in a manner that favors his or her client.
Of course, there are many trial lawyers who handle their own appeals, just as there are many doctors who practice general medicine. However, where the stakes are high, and you want to ensure you have put your best legal foot forward in a particular case, hiring an appellate lawyer as a consultant from the beginning of the case can be cost-effective insurance that all possible errors made at the trial court level can be addressed by the appellate court.