Maybe you are embroiled in litigation or the issues are complex or the stakes are high. Perhaps you have already considered the potential for appeal, and the final judgment may have already been entered in your case.
That is, a winner and a loser have already been declared and the reality of an appeal is inescapable. You may be asking – Do I need an appellate lawyer?
Our constitution assigns different kinds of decisions to different decision makers. So who are these decision makers and what do they do?
- The Trier of Fact – in the trial court, the jury or the trier of fact, decide questions of fact. For example, the trier of fact would consider questions such as “was the light green or was the witness telling the truth?” In short, the trier of fact searches for the truth.
- The Appellate Court – on appeal, the appellate court decides questions of law. For example, the appellate court would determine what a particular statute means or whether the testimony of a witness was admissible under the evidence code. The appellate court corrects errors of law by the trial court.
How do Trial Lawyers and Appellate Lawyers work together?
A trial lawyer uncovers, organizes and presents facts to the trier of fact. The trial lawyer asks witnesses questions and guides the trier of fact through those facts in closing argument.
A trial lawyer’s immersion in the case can easily create blinds spots when reviewing issues for appellate relief. An appellate lawyer offers a fresh look at the case. The appellate lawyer’s detached assessment of the case approaches the perspective of the appellate judge. The appellate lawyer views the case from the actual record created in the trial court and not the anticipated record centered on by the trial attorney. Most importantly, an appellate lawyer has an intimate knowledge of appellate procedure and applicable standards of review. From this view point, an appellate lawyer is better able to evaluate the appellate issues and their prospects for success.
An appeal is presented to the appellate court through briefs and oral argument. The drafting of briefs and preparation for oral argument are unique skills that do not ordinarily overlap with trial skills. The presentation of complex legal reasoning is often best suited to written presentations. The appellate lawyer must anticipate and answer the questions of the appellate court. At oral argument, the appellate court has intensely studied the case and is well versed in the issues. The appellate lawyer must then engage in a dialogue with the appellate court, acutely directed toward the applicable law.
The relationship between trial counsel and their appellate lawyer forms an essential link between preparing your case for trial and securing your chances on appeal.