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Many people assume that an appeal is merely the continuation of the trial court litigation, only in a different court. This assumption is wrong and can prove fatal to a party’s position on appeal.
Appellate litigation is a specialized field, with its own procedures, rules and practices. Just as you would not hire a patent lawyer to handle a bankruptcy case, or a tax lawyer to handle a family law matter, you would be making a mistake by hiring a trial lawyer to handle an appeal. An appellate lawyer possesses different skills, training and expertise than those possessed by a trial lawyer. In recognition of this fact, the California State Bar offers a certification in appellate law. To earn this certification, a lawyer must not only accumulate significant experience handling appeals, they must also pass a day-long written examination on appellate law and procedure.
What Distinguishes Appellate Litigation From Trial Court Litigation?
Appeals Have Different Rules: Appellate practice has its own specific set of procedural rules. Those rules govern everything from filing deadlines to details about the content and format of appellate briefs. Relatedly, legal arguments on appeal are driven by the standard of review that applies to a particular issue. Standards of review dictate what level of deference an appellate court must give to the trial court on a particular issue. Appellate lawyers are skilled at identifying, and working within, standards of review. Trial lawyers, by contrast, generally lack familiarity with these rules.
Appellate Courts Serve A Different Function Than Trial Courts: Whereas trial court litigation is driven mostly by facts and the credibility of witnesses, the appellate process is concerned with the identification of legal error. Appellate judges therefore do not weigh evidence or judge the credibility of witnesses, as a trial court, or a jury, does. Their job, rather, is to decide whether the trial court committed errors of law. Appellate lawyers are trained to spot and exploit errors of law.
Appellate Lawyers Bring A Fresh Perspective: By the time a case concludes in the trial court, the trial lawyer usually has lived with the case for several years. Consequently, he or she may have formed a psychological attachment to certain arguments or theories. An appellate lawyer, however, is free of such influences and therefore can analyze the case more objectively, identifying the stronger arguments and discarding the weaker ones.
Appellate Lawyers Have The Time To Write Superior Briefs: Although trial lawyers are often excellent writers, they have to juggle many cases and tasks in the course of a day, so they don’t have large blocks of time to devote to writing. Appellate lawyers, by contrast, are not operating under such pressures. Consequently, they are far more likely to produce the kind of quality briefing that can make or break an appeal.
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