Top 5 Reasons to Hire an Appellate Attorney
Hiring outside counsel who focuses their practice on appellate advocacy can benefit both you and your clients. However, with the legal market becoming increasingly competitive and the increasing expense of litigation, it is understandable that you may think twice about bringing an appellate attorney on your trial team or hiring outside appellate counsel to prosecute an appeal. Here are five reasons why retaining an appellate practitioner is a smart decision:
1. Trial advocacy is different than appellate advocacy: Many very talented trial attorneys assume their skill in the courtroom will translate into success on appeal. This is not necessarily the case. A trial attorney who writes briefs like a closing argument to the jury will face an uphill battle on appeal. Appellate judges can tell when an oral argument is presented by someone who is primarily a trial attorney. This is not to say that trial attorneys cannot successfully advocate for their clients on appeal, but the skillset is very different. The types of arguments that sway juries do not necessarily sway appellate judges. Writing an appellate brief is fundamentally different than writing a memorandum of law to a trial court. In addition, appellate attorneys generally are more familiar with recent changes in substantive law and the trends occurring in an appellate court. Because appellate attorneys usually have prior clerking experience, they may have insider knowledge as to how the appellate courts operate and the issues that are important to appellate judges. An appellate advocate can maximize your client’s chances of success on appeal.
2. Kickstart your appeal: An appellate advocate can spot potential appealable issues early on, ensure that legal arguments are not waived, and assist trial counsel is presenting evidence in a manner that best supports your legal arguments on appeal. Having a “fresh set of eyes” review your case also will give you additional insight or open up new lines of argument for your client. Moreover, by engaging an appellate attorney early on, you signal to your opponent your client is in this for the long run and is serious about pursuing their case on appeal. Engaging an appellate attorney at the trial court level can kickstart your appeal and give you an advantage over your adversary.
3. Ensure a final appealable judgment is entered and appellate timelines are observed: This sounds simple, right? Wrong. The rules governing the finality of judgments and orders in Wisconsin are complex and confusing. Is your judgment truly “final”? Does it have the “magic words” required by the Wisconsin Supreme Court? What about post-judgment issues concerning taxation of costs and attorney fees? An appellate advocate can answer these questions for you and ensure costly procedural mistakes are not made.
4. Free up your precious time and your client’s money: Many trial attorneys are extraordinarily busy and simply do not have the time that it takes to prepare an effective appellate brief. Negotiating the appellate process can be tricky and time-consuming, especially if you do not routinely practice in appellate courts. This means more lost time for you and more fees for your client. Engaging appellate counsel can free up your time and allow you to focus on what you do best. In addition, dedicated appellate counsel often can prepare an appeal more quickly and cost-effectively than an attorney who is unfamiliar with appellate practice and procedure.
5. Appellate counsel will not steal your clients: Many trial attorneys are wary of engaging appellate counsel for fear of losing their clients. They may worry that hiring outside counsel signals to their client they did something wrong or are not competent. None of these concerns are accurate. Most appellate attorneys enjoy what they specialize in: writing appellate briefs, presenting oral argument, and navigating through the complex maze of appellate procedure. They are not interested in dealing with your clients’ day-to-day business transactions or other legal issues. Hiring an appellate attorney does not signal any weakness on your part; rather, it shows your client that you are cognizant of the complexity and difficulty of the appellate process and have their best interests in mind. And, as you will be able to supervise the work of outside appellate counsel, you retain the connection to your client.
The bottom line is that hiring a dedicated appellate attorney is a smart move for both you and your clients. Doing so increases the likelihood of obtaining a favorable result on appeal, frees up your time, and puts your client’s best interests first.
Timothy Barber is a partner at Axley and has focused his practice on appellate advocacy for the last 10 years. He is a former law clerk to Justice Jon P. Wilcox (ret.), has argued cases before the Wisconsin Supreme Court, and Seventh Circuit Court of Appeals, and is admitted to practice before the United States Supreme Court.