Part 2: Benefits and Downsides of Appellate Counsel Handling the Appeal

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Pros

1. They Know the Appellate Rules and How the Judges Operate.

The obvious benefit to having appellate counsel handle the appeal is that they are specialists! They know the appellate rules, how to practice before the appellate courts, and how the judges operate. Most have worked for these or other judges in the past and have handy insights from personal experience. This is the main benefit of engaging appellate counsel to handle the appeal—assurance that the job will be done correctly and competently handled. That peace of mind is a huge benefit to the client (not to mention a relief to trial counsel).

2. Appellate Counsel Will Adhere to the Record.

Partly because they were not at trial, appellate counsel will be forced to master the key portions of the appellate record. And this can be a benefit. Facts will be used to the advantage of the legal argument, rather than taking center stage. Appropriate use of facts applied to the law is one of the major skills an appellate lawyer can bring to the table.

3. Briefing and Argument Will Be Focused on the Issues Important to the Court.

A competent appellate attorney will produce briefing and argument that is focused, well-written, and procedurally compliant. Appellate attorneys are generally good writers, and many worked for appellate judges prior to going into private practice who trained them in appellate writing. They have a good sense of how an appellate judge thinks and what arguments will be effective, having spent months or years convincing their own judges. This is probably the biggest benefit to having specialized appellate counsel handle the appeal.

4. Cost

Engaging specialized counsel who knows how to think like an appellate judge may end up saving money in the end. Appellate counsel can often identify the issues to raise on appeal, draft the notice of appeal, designate the record, write the brief, and argue in front of the court much more efficiently than trial counsel, with a more impressive product. In the end, the time saved may end up making up for the increased hourly rate that sometimes accompanies specialists.

Cons

1. Lack of Trust in, or Loss of Control to, Another Attorney.

Perhaps you are not comfortable turning over a case where you’ve invested so much time and effort to another attorney. One big “con” of hiring appellate counsel is giving up control. For some attorneys, if you have an independent obligation to ensure that the notice of appeal is filed, it may seem easier to just do it all yourself, if only to ensure the work gets done. Hiring appellate counsel may mean having to admit that another lawyer could do a better job (and that can be tough for any attorney). Whatever the basis for the fear, giving up control of “your” case can be a real challenge.

2. They “Weren’t Trial Counsel” . . .

When new appellate counsel comes in to take the appeal and is asked during oral argument about a factual issue in the case, judges hate it when the attorney replies, “Well, I was not trial counsel, your honor.” Of course, competent appellate counsel should know the appellate record cold (and if it was not in the appellate record, it is appropriate to say so), but the lack of familiarity with the case may be a downside to using appellate counsel.

3. They may Poach your Case (or your Client).

One potential downside of appellate counsel, particularly if they or their firm also have a robust trial practice, is the potential that the client will see them as more desirable or competent, particularly if they prevail on appeal. Giving up a case to appellate counsel may increase the chance that you won’t get the case back on remand, or will somehow lose your relationship with this client for future matters. While it may not happen, it is a valid fear that many lawyers have (particularly smaller firms with fewer resources).

4. Cost

As should be apparent, cost can really go either way depending on the unique arrangement. Oftentimes, however, appellate counsel can be more expensive. With increased specialization often comes a higher hourly rate, or a large-firm rate. Depending on the case, it may be expensive to get appellate counsel up to speed on the case. A new attorney will necessarily have to review the file in more detail, as well as potentially do more background research on the law. Depending on how the case is staffed, and the level of perfection sought on the research and drafting, appellate briefing can be very expensive.