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

Bashman added that appellate lawyers understand how to frame arguments to appellate judges more succinctly, instead of re- hashing an entire case from beginning to end.

It's not as though some great secret was imparted to us as appellate lawyers, he said. Just as trial lawyers are more attuned to the attitudes of their courts, good appellate lawyers are plugged into what's working and what's not at the appellate level.

Not For Every Case

Appellate lawyers agree that some cases do not require the attention of a specialist.

No one is trying to suggest that appellate lawyers are a necessity and that not hiring one would be the equivalent of malpractice, Bashman said.

The decision to utilize appellate lawyers is really a cost- benefit analysis, he said.

There are certainly times when an adverse decision is worth many million of dollars and the added cost of an appellate lawyer earlier in the case would have been worth it, he said.

Watford, Co-Chair of the ABA Litigation Section's Appellate Practice Committee, said it's often clear from the outset whether a case has appellate potential.

If there is a car accident case where the main dispute is whether the light was red or green, that case turns on factual issues and there's not a whole lot of value an appellate lawyer could bring to the table, he said.

On the other hand, he said, a high-stakes claim worth millions of dollars or a state court case that implicates federal preemption, for example, would call for an appellate lawyer.

Sungaila said the possibility of creating precedent can also be a motivating factor for the presence of appellate attorneys.

One example is mold litigation, she explained. A couple of mold cases may not pose a lot of damage exposure, but if an insurance company knows there are a number of cases coming down the pike, it would behoove them to have appellate lawyers involved early on.

[But] sometimes we'll consult and say we don't think this is the best case to push for an appeal, Sungaila said. If it's a recurring legal issue, we may think the particular case doesn't have the best facts or best presentation of the issues.

This article was originally published in Lawyers Weekly USA, another Dolan Media publication.