A lawyer I recently connected with asked me a question about my Of Counsel work as an appellate attorney: how do you get up to speed on a case enough to do the appeal?
It’s a logical question because, as any good lawyer knows, a good lawyer knows every minute detail of a case when it is winding its way through the court process. So it’s common for a lawyer to think to themselves, “if I know the case so well, because I’ve been shepherding it for (however many) years, then I must be the best one to handle the appeal.”
This thought, common as it is, often leads to a more common pitfall: in a version of missing the individual trees for the forest, a lawyer who has mulled over the facts and law in their client’s case for such a long time is unlikely to see the best argument for winning an appeal. One reason for this is an unfamiliarity with appellate doctrines, which require you to home in on a particular error or standard in the lower court to reverse or uphold an order or judgment (the best doctrine to use depends on the particulars of the case).
Another reason for missing the trees—which I see time and again in my work drafting appeal briefs for lawyers and small law firms—is because the human mind tends to follow the same routes when it processes large volumes of information. No matter how smart any lawyer is, they are also human, and they will tend to see the same arguments—and the same evidentiary support for those arguments—over and over again.
A mind that is seeing the information for the first time, by contrast, will see it in a different way—and it will often birth ideas for arguments that even the smartest lawyer wasn’t able to see because they were so used to seeing the information. This is what I do as an appellate lawyer: I review the case from a bird’s eye view to find the best tree in the proverbial forest of arguments.
A different perspective—especially from someone who focuses extensively on appeals—is crucial if your client lost in the lower court and needs to reverse an order or judgment. There is a reason why you lost. Hiring an appellate attorney to write the appeal brief as Of Counsel to your firm will better help your client reverse that loss (when it is possible under the law).
I’ll give you an example. I recently wrote an appellate brief in a medical malpractice action. The client was a plaintiff appealing an order granting summary judgment to several doctor defendants. The record was 6000 pages, full of depositions and medical documents. I was hired by the lawyer for the client to find an appeal argument and write the brief. The lawyer pursued an argument (in opposition to summary judgment) that there was plenty of evidence to show the doctors’ negligence. And she was right, there was circumstantial evidence. But after years of litigation and reams of motion papers, the lawyer missed a crucial doctrine that could have saved the case in the lower court: res ipsa loquitur, which relieves the plaintiff of the burden of proving negligence with direct evidence. She simply never saw it because there were so many moving pieces in the case. Fortunately, I found the argument and a way to raise it for the first time on appeal (which is allowed only in certain circumstances). The client’s case was saved as a result.
Your client’s appeal is important, which is why you’ve spent so much time thinking about it. If you got an unfavorable order or judgment in the lower court, it’s time to have an appellate attorney take a look at the case with a bird’s eye. It’s a good time to do it even if you are defending a favorable order or judgment that your client’s adversary has appealed (because the adversary will probably have an appellate lawyer taking a bird’s eye look at the case).
If you need help with an appeal that your client is taking or defending, get in touch.
