Do-it-yourself brain surgery, or why you may need an appellate specialist.

You are a doctor. Competent. Respected. Successful. Although you took courses in medical school in everything from genetics and psychology to hematology and general surgery, you haven't practiced in those fields since your residency. You now specialize as an internist.

One day you get a headache. You first try over-the-counter drugs, then prescribe stronger medicine for yourself. Nothing works. You consult a neurologist, who schedules an MRJ and asks a radiologist to help interpret the results.

The bad news is you have a tumor; the good news is it's operable. Now you face a choice: (1) turn your fate over to the best neurosurgeon you can find; (2) put your life in the hands of another internist from your own office (perhaps the new medical school grad, who has few patients of his own); or (3) start reading books on do-it-yourself brain surgery. What should you do?

Now imagine that you're the good doctor's twin. Competent. Respected. Successful. Although you took courses in law school in everything from property and contracts to taxes and appellate advocacy, you haven't kept up in those areas since you took the bar. Instead, like your twin, you're a specialist; the difference is you're a legal specialist--a trial lawyer.

Like your twin, you've got a headache. Yours, however, is a massive legal headache. You recently won substantial damages for three of your clients following a long trial against a Fortune 500 company. The defendant has now appealed, asserting that the judgment should be reversed because the trial court erroneously refused to

* dismiss your clients' claims as preempted by federal law;

* dismiss those claims as res judicata under the terms of a recently entered class action settlement;

* bar your "junk scientists" from testifying;

* bar evidence from another case that was subject to a confidentiality agreement;

* uphold a state "tort reform" statute that capped damages; and

* reduce the jury's "grossly excessive and therefore unconstitutional" award of punitive damages.

You've just received the defendant's opening brief. Thick. Polished. Scholarly. Although the names of the defendant's trial lawyers remain prominent on the briefs cover, rumor has it that the defendant hired one appellate specialist to write the brief and may even have another waiting in the wings just to handle the oral argument.

You have a full trial calendar and scant appellate experience. Your dilemma is the same as your twin's: (1) turn your fate over to the best appellate specialist you can find; (2) put your case in the hands of another lawyer from your firm (perhaps that new grad, who has few clients of his own); or (3) start reading tomes on do-it-yourself appellate advocacy. What should you do? For busy lawyers with minimal appellate experience and little time to master that trade, the answer would seem to be the same "no-brainer" that it was for the good doctor: You should turn your case over to--or, at least, consult with--the best specialist you can find.

Paradoxically, though, many trial lawyers are loathe to do this--regardless of whether the legal issues on appeal are routine or novel and complex, whether the financial stakes are low or high, whether they won or lost at trial, or whether the case is in an intermediate state appellate court or the U.S. Supreme Court.

The thesis of this article is that hiring--or, at minimum, consulting with-an appellate specialist is generally a smart and cost-effective thing to do, unless the only issues on appeal are garden-variety ones, such as whether the trial court properly applied settled precedent to the facts. It is especially astute to work with a specialist when the financial stakes are high or when the appeal involves novel or complex issues, such as questions regarding constitutional law or statutory interpretation. In a nutshell, when brain surgery is called for, it is in everyone's but your opponent's best interests to forgo do-it-yourself surgery.

Anything You Can Do, They Can Do Better

Although some trial lawyers might doubt that an appellate specialist can write a better appellate brief, deliver a more skillful appellate oral argument, and, most important, produce better overall results on appeal, there is compelling evidence that these specialists can do all three.

One leading student of appellate practice has concluded that "the outcome of cases" on appeal is often "directly related" to the appellate experience of the lawyer or lawyers writing the brief and handling the oral argument,(1) with veteran specialists increasing the odds of winning an appeal by 40 percent to 160 percent, depending on the court and the specialist. More impressive is the track record of appellate specialists in courts, such as the U.S. Supreme Court, where appellate review is granted as a matter of grace and not of right. For example, appellate specialists can increase the odds of convincing the Supreme Court to grant certiorari from an intimidating 1 in 100 to an inviting 1 in 7.(2)

Even more convincing than dry statistics about what courts have done are data about what other lawyers--both your opponents and your competitors--are doing. They're hiring specialists with increasing frequency because they've become convinced that doing so pays off. For example, at the same time that most corporations are bringing more legal work in house and most corporate law firms are downsizing, corporate appellate practices are expanding and "appellate boutique firms are growing in size and number."(3) As a result, nowadays "there are new attorneys in one-third of the appeals," even in civil cases.(4)

The same trend is developing among plaintiffs' trial lawyers--albeit much more slowly. This fact leaves plaintiffs' firms, and their clients, behind the curve and at a relative disadvantage. Still, a number of plaintiffs' firms have noticed that their opponents are on to a good thing and have decided to emulate them, although on a reduced scale.

Some smaller firms have designated a member to handle all appeals, while a few larger firms have inaugurated entire appellate departments, staffed by full-time specialists. Yet other firms, both large and small, regularly retain or consult with free-lance specialists or moonlighting law professors on an as-needed basis. Indeed, a number of firms have found it makes sense to consult with appellate specialists before and during trials. These specialists provide strategic advice about the case, ghostwrite or edit briefs, and offer guidance on how best to pre serve the record and guard against reversible error by the court.

Appellate law has developed as a distinct specialty in the last 30 years, largely because of the "dramatic [changes] in the way appeals [have come to be] briefed, argued, and decided" during this period.(5) These changes are primarily the product of the vast expansion of the caseloads borne by--and the pressures imposed on--appellate judges.

Although the "litigation explosion" is myth, not reality (at least as far as tort cases are concerned), over the last three decades, federal and state appellate courts have been inundated by an "avalanche of appeals,"(6) with the average caseload per judge increasing by more than 400 percent.(7)

As a result, "in order to reduce their workload," appellate judges frequently take every opportunity--and often direct their clerks to research every device to dismiss appeals without reaching the merits.(8) For example, "judges and their staffs comb briefs and appellate records to find a basis . . . to decline decision due to procedural default or to shunt the case onto a summary track to a decision rendered without oral argument. . . ."(9)

Moreover, the urgency spawned by increased caseloads, combined with "the increasing complexity of cases, . . . has removed much of the contemplative nature of appellate judging,'"(10) and has caused courts to place restrictions on the oral presentation of appeals. Rules limiting argument to 15 or 20 minutes are common, and many appeals are now being decided with no argument. So, "the burden of persuading the court rests more heavily on the brief than it ever has."(11)

To make matters worse, plaintiffs' lawyers are especially affected by--and increasingly targets of--these developments. "Tort reformers" and savvy defense counsel persistently blame the "litigation explosion" on "greedy" plaintiffs and their lawyers and take advantage of the pressures of increased caseloads to urge appellate courts to dismiss appeals on a number of grounds, including that the court lacks jurisdiction or that the state tort claims are preempted.

For example, a few years ago a leading member of the International Association of Defense Counsel advised that "preemption should be raised as soon and as often as possible. . . . Defendants should argue that both punitive and compensatory damages under any theory of liability . . . are preempted by the applicable federal regulations or statutes."(12)

A Wise Investment

Appellate specialists have been flourishing precisely because they are better at meeting the increasing demands--and altogether different criteria--of appellate courts. The reason that specialists are more adept at these tasks--and are better at winning cases on appeal--is not because they are innately better lawyers. Rather, they obtain better results in their trade for the same reason and in the same way that trial specialists are better at their craft: These lawyers practice their skills over and over and over again. "Repetition and experience are great teachers. A lawyer who concentrates on handling appellate cases simply knows the waters in which he or she is about to sail and can chart the most direct course."(13)

Although many trial lawyers readily concede that appellate specialists are more conversant with appellate rules, they nevertheless maintain that that. advantage is offset by the trial lawyers' trump card--their mastery of the case. Thus, they believe that "the facts are everything" in a lawsuit and that no one knows (or can hope to learn) the facts as well as they do (or can).

Significantly, however, this "strength" is almost universally regarded by appel late judges as a trial lawyer's greatest weakness.

As one former state supreme court justice has complained (in remarks echoed by other judges), "All too often, attorneys who are not regular customers in the appellate courts treat their appeals as nothing but" an opportunity to reargue the facts and to explain why the trial court simply failed to appreciate the equities of the case.(14)

Accordingly, although trial lawyers may suppose that they have an edge over appellate lawyers because they've "lived with a case" for months, the irony is they may have lived with the case too closely and for too long.(15) Familiarity with a case prepared and tried months ago can be more foe than friend, as it can make it difficult to distinguish exactly what evidence actually made it into the official record.(16) Furthermore, being too close to the trees can cause you to lose sight of the forest, blinding you to the real strengths and true weaknesses of your appeal.

By contrast, what looks like an appellate specialist's fatal weakness--the fact that the specialist sees the case and the issues "cold"--almost always turns out to be a blessing in disguise. This is so because the specialist "'views [the case and the issues] precisely as does the appellate court, through the little square window of the [official] record. . . .'"(17) Moreover, because appellate specialists make their bread and butter by monitoring the way different appellate judges and different appellate courts treat unfolding jurisprudential trends, they are far more able to grasp which arguments will be most persuasive, which issues will be most enticing, and which facts will be most likely to win a reversal or gain an affirmance from the court.(18)

Appellate specialists bring five other equally important skills to a case. They tend to be much better at (1) writing the type of briefs prized by appellate courts; (2) presenting the type of oral argument esteemed by appellate courts; (3) navigating around the often recondite procedural rules of these courts; (4) minimizing the risk that sanctions will be imposed by the courts or that malpractice claims will be filed by disgruntled clients; and (5) handling appeals efficiently and cost-effectively.

First, burgeoning judicial caseloads require that briefs be written for maximum effectiveness, especially because written briefs are increasingly becoming "the only shot counsel gets at the appellate court."(19)

Good appellate briefs win appeals. And good appellate briefs are more likely to be written by people who specialize in writing appellate briefs and who recognize that these briefs are quite different from trial briefs because they are written for very different types of judges who employ very different standards. Consequently, although no rule ordains

that a well-written brief will win . . . .

the advantages of clearly stating your

position, while skillfully narrowing the

argument and selectively using supporting

authorities, are compelling. Although

the effect of a well-written brief

may be intangible, judges appreciate

good writing; it makes their job easier

and more enjoyable. Opponents are

less likely to garble your position, either

mistakenly or intentionally, and

obscure the issue. The opinion writer

is more likely to rely on your brief and

adopt . . . some phrase or attitude that

will improve your chances on retrial or

enlarge your remedy.(20)

Specialists are particularly adept at "rethink[ing] the case from the beginning, without prejudice based on theories and points" raised at trial; they "dare to focus on a few strong points and jettison all the others."(21) They are also exceptional at winnowing out the "two or three worthwhile issues" in each case,(22) at drafting those "questions presented" in a way that leads the court to provide the answers they desire, and at writing a statement of facts that is necessarily neutral in form but persuasive in effect.(23)

Knowing which questions to raise, which arguments to push, and which facts to stress is particularly important in constitutional cases, as is illustrated by the experience of ATLA's Legal Affairs Department.

For example, in one recent case, the department saved a group of trial lawyers from a futile and potentially costly plan to seek U.S. Supreme Court review of an adverse preemption ruling by their state supreme court, not because the department thought that ruling was unassailable on the merits (it clearly was), but rather because the state court had concurrently ruled that the putatively preempted claims were not even cognizable under state law. Because the latter holding constituted an "independent and adequate state ground" for the court's dismissal of the plaintiff's claims, it doomed any chance that the U.S. Supreme Court would grant certiorari in the case.

Second, appellate specialists are typically better at handling oral argument in appellate courts. The fact-laden and occasionally dramatic style of argument that many trial lawyers use so effectively before juries of relatively credulous laypeople is often ineffective in appellate courts comprised of skeptical professionals. Indeed, what works in front of juries may antagonize appellate judges.(24)

One scholar summarized the feeling of many judges: "Often the trial lawyers . . . think their silver tongues will reduce appellate judges to putty."(25) Appellate judges actually prefer the much more direct and "objective approach of the appellate advocate. . . . Their ability to answer effectively the questions propounded during oral argument often spells the difference between [victory and defeat]."(26)

Appellate lawyers are also more adept at handling arguments briskly, which is becoming increasingly important. "A trial lawyer may take days or even weeks to persuade a trial judge or jury; [today] an appellate lawyer has his time dribbled out to the minute."(27)

Third, appellate specialists have an advantage over trial specialists because they are far "more familiar with the appellate rules and procedures."(28) Therefore, they are better able to take advantage of such useful arcane as the intricacies of interlocutory review and the collateral order doctrine, how to use a stay application to test whether to proceed with a motion for leave to appeal, and whether and how to take a cross-appeal.(29)

Fourth, appellate specialists can help you avoid sanctions and malpractice claims. Although appellate practice carries no special ethical obligations, the notably different skills and knowledge required to handle a complex or novel case on appeal raise questions about a nonspecialist's ability to comply with the most elemental of professional rules: the duty to "provide competent representation to a client." This requires "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."(30)

Appellate judges express growing impatience with the "great deal of incompetence" that they see,(31) particularly "with sloppiness, mistakes, and flouting of appellate procedure rules."(32) As a result, appellate courts are becoming evermore willing to use sanctions to punish noncompliance with rules, undue delay, and frivolous appeals.(33) Experts in attorney malpractice likewise warn that incompetent representation on appeal, such as failure even to consult with a specialist, increases the odds of being sued by a disgruntled client.

Fifth, hiring appellate specialists is often cost-effective, both because their unique skills increase your chances of collecting your contingency fee in the case they are working on and because their assumption of that task frees you to do what trial specialists do better than anyone else: prepare and try lawsuits before juries.

Although appellate specialists are most needed in cases where the stakes are high or the issues are novel or complex, efficiencies can be found and savings made even in garden-variety cases. For that reason, retaining specialists need not be limited to million-dollar or constitutional cases in the U.S. Supreme Court.

Indeed, the services specialists provide in a particular case can vary with your needs and skills and with the economics of the case. At one end of the spectrum, appellate specialists can assume full responsibility for the appeal; at the other, their role can be confined to providing guidance on such matters as whether you (or your opponent) have appealable issues, what the odds are of success given the court and current trends, and which issues, arguments, and facts to push and which to abandon.(34)

Even if you are unwilling to let another attorney ghostwrite the brief or handle the oral argument (or if the relatively low stakes of the case make it uneconomical to do so), it is still often advisable to see. a second attorney to play devil's advocate with your arguments, to moot court your oral advocacy style, and to troubleshoot and edit your brief.

One expert described this last skill as particularly crucial to your chances of success:

Editing is probably the most neglected

stage in the preparation of brief.

No one would think of publishing an

unedited law review article, book, or

[news] story . . . but lawyers are surprisingly

casual about filing unedited

brief. . . . Editing should be regarded

as an essential part of brief writing. . . .

[T]he brief should be edited by someone

other than the attorney who wrote

it, preferably a lawyer who knows nothing

about the case. This insures that

the brief gets a fresh look during the

edit.(35)

In the final analysis, just as it might be unwise and cause you to risk sanctions and a malpractice suit to allow a neophyte trial lawyer to make a closing argument to a jury in a major case, it might be equally foolhardy to allow an amateur appellate lawyer to handle that same case on appeal: "[B]eing a good trial lawyer does not mean that you are also a qualified appellate advocate."(36)

It's often best to leave brain surgery to the brain surgeons.

Notes

(1) KEVIN T. MCGUIRE, THE SUPREME COURT BAR: LEGAL ELITES IN THE WASHINGTON COMMUNITY 192 (1993). (2) Id., Table 8.2, at 184. (3) Robert Hinerfeld, Appellate Advocacy, L.A. LAWYER, Aug./Sept. 1990, at 35. (4) RICHARDSON R. LYNN, APPELLATE LITIGATION 83 (2d ed. 1993). (5) Id. at 1. (6) See generally RUGGERO J. ALDISERT, WINNING ON APPEAL 7-10 (1992). (7) ROBERT L. STERN, APPELLATE PRACTICE 20-21 (2d ed. 1989). (8) MICHAEL E. TIGAR, FEDERAL APPEALS: JURISDICTION AND PRACTICE 2 (rev. ed. 1993). (9) Id. at 2-3. (10) LYNN, supra note 4, at 6. (11) Randall T. Bell, To Write a Brief in APPELLATE ADVOCACY SOURCE BOOK 3 (1980). (12) Charles F. Preuss, Federal Preemption of State Tort Actions: When and How, DEFENSE COUNSEL J., Oct. 1990, at 435, 444. (13) Eric J. Magnuson, Achieving Efficiencies in Appellate Cases, in APPELLATE PRACTICE FOR THE LITIGATOR 1 (1994). (14) Arthur J. England, Appellate Specialization, in APPELLATE PRACTICE FOR THE LITIGATOR 7 (1994). (15) LYNN, supra note 4, at 59. (16) HERBERT M. LEVY, HOW TO HANDLE AN APPEAL 18 (1990). (17) STERN, supra note 7, at 71 (citation omitted). (18) See Dennis J.C. Owens, New Counsel on Appeal, in ABA PRACTICE MANUAL 61 (1992). (19) John C. Godbold, Twenty Pages and Twenty Minutes--Effective Advocacy on Appeal, 30 SW. L.J. 801 (1976). (20) LYNN, supra note 4, at 3. (21) TIGAR, supra note 8, at 14 (citation omitted). (22) Magnuson, supra note 13, at 3. (23) LEVY, supra note 16, at 134-44. (24) STERN, supra note 7, at 72; Owens, supra note 18, at 62. (25) Gerald F. Uelman, T e New Demands of Appellate Practice, CAL. LAW., Jan. 1994, at 57. (26) STERN, supra note 7, at 72 (quoting Judge Oliver Gasch). (27) ALDISERT, supra note 6, at 5. (28) STERN, supra note 7, at 72 (quoting Judge Oliver Gasch). (29) LYNN, supra note 4, at 147-57, 188-89. (30) ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.1. Compare MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 6-101(A). See generally LYNN, supra note 4, at 68-71. (31) LYNN, supra note 4, at 69 (citation omitted). (32) Id. at 9 (33) See generally id. at 14-17; STERN, supra note 7. (34) LEVY, supra note 16, at 20-21; LYNN, supra note 4, [sections] 58.1-8.3; Magnuson, supra note 13, at 2 ("Often the most economical appeal is the one never taken. . . . The decision to appeal should not be a reflex action, and an appellate lawyer is in a good position to make a dispassionate and rational recommendation on the merits of an appeal."). (35) Bell, supra note 11, at 21-22. (36) ALDISERT, supra note 6, at 4-5.

Ned Miltenberg is associate, general counsel in ATLA's Legal Affairs Department. He has participated in drafting briefs filed in the U.S. Supreme Court in recent cases such as Medtronic, Inc. v. Lohr (federal preemption) and BMW v. Gore (punitive damages). The opinions expressed in this article are his and do not necessarily reflect ATLA policy.