The verdict is only the beginning -- the appeal usually follows

Daily Record and the Kansas City Daily News-Press, Apr 13, 2006 by Correy E. Stephenson

Nobody wants to lose.

But lawyers are increasingly preparing themselves, win or lose, for the inevitable appeal.

Our firm has been increasingly called in earlier and earlier in cases in the trial court, said appellate lawyer M.C. Sungaila, a partner at Horvitz & Levy in Encino, Calif. We're like insurance for all of the strategic decisions [lawyers] need to make in the fast- paced environment of the trial. We're able to sit back and look at a case like an appellate court would, suggesting where the evidence needs to be filled in or the record needs to be strengthened.

The goal, according to appellate specialist Shannon McLin Carlyle, is to bring in an appellate lawyers early enough to ensure that critical issues are preserved for appeal. She said attorneys typically retain her firm during the substantive pleadings stage.

In the best case scenario, in cases that have significant legal issues - such as [child] custody or a case with significant monetary issues - we like to get involved early enough to make a difference at trial, said Carlyle, a partner at the Carlyle Appellate Law Firm in The Villages, Fla.

While it depends on the nature of the case, there are probably two phases in particular that appellate lawyers can add the most value: pre-trial dispositive motions such as summary judgment or a motion to dismiss, and at trial, shaping the record for appeal, said Paul J. Watford, an appellate lawyer in the Los Angeles office of Munger, Tolles & Olson.

The work itself varies.

Donald Falk, an appellate attorney at Mayer Brown Rowe & Maw in Palo Alto, said it's most common for appellate lawyers to work on a discrete issue - such as punitive damages - as opposed to the entire case at the trial level.

But Carlyle said members of her firm often sit second chair throughout a trial, counseling the litigator about necessary objections, motions and evidentiary admissions to create a more perfect record. While an appellate lawyer wouldn't stand up and object during trial, he or she would bring the issue to the attention of the litigator.

Different Skill Sets

As in any profession, different lawyers have different skill sets.

Trial lawyers are great oral advocates and have a fantastic presence in front of the jury, said Carlyle. And a lot of trial lawyers really don't want to be stuck in the office in front of a computer 10 hours a day, researching an issue.

But the written word is the stock in trade for appellate lawyers, she said. And while appellate lawyers must also be able to make strong oral arguments, they make these arguments to a very different audience.

Instead of telling a story to a jury, appellate lawyers argue a very discrete legal point to a judge, using only the information entered into the record at trial.

On appeal, you have the cold hard record - if it isn't in the record, it didn't happen, said Sungaila.The challenge at that point is to present a persuasive story based on those facts and the law about reversing or affirming the judgment. It's more of a bird's- eye view of the case in the context in it occurs in the broad legal landscape.

Those differences can often create problems down the road if someone hasn't been keeping an eye towards appeal throughout the trial.

What the appellate lawyer often faces is the specter of a trial record in which perhaps some meritorious arguments are not going to be available on appeal because they were not properly preserved at the trial level, said Howard Bashman, a solo appellate lawyer in Willow Grove, Pa., who writes the well-known blog, How Appealing.

He said a good trial lawyer knows when to make objections and file the appropriate motions, but often gets caught up in trial strategy, such as not wanting to object too often and anger the trial judge.

That approach is reflected in trial motions as well, he noted. Trial lawyers are masters of the facts of the case, and generally focus more on facts than law.

Whereas in an appellate brief, law dominates the discussion, he said.

Growth of Appellate Lawyers

Sungaila said the growing number of appellate lawyers can be felt both locally and nationally. Her firm, Horvitz & Levy, began as a small boutique 50 years ago and has continued to grow to 30 lawyers today.

Carlyle's central Florida firm recently joined forces with two other Florida appellate firms in southern or northern parts of the state to create the Florida Appellate Alliance, an umbrella firm that offers appellate services on a state-wide basis.

This growth is due, in part, to the trend toward specialization among trial attorneys. Carlyle noted that many litigators have not worked on an appeal for years.

We may be procedural specialists, but we're substantive generalists, Sungaila explained.

Carlyle has recently worked on issues ranging from eminent domain, to custody battles, to upholding a recent state constitutional amendment.

Bashman said the breadth of subject matter actually benefits an appellate lawyer at oral argument.

One of the great advantages of seeing a lot of different practice areas is that you have a viewpoint similar to the judges, who are often not experts in technical areas, he said. A lawyer more familiar with a specific practice may not be able to translate the technical material for an audience without that extensive background.