Choosing a Trial Firm Upon Consideration of the Firm's Appellate Practice
February, 2002
At Clausen Miller, trial counsel does not handle the appeal. The firm recognizes that a case on appeal is altogether different from a case at trial, that effective presentation upon appeal requires a blend of forensic and analytical talents not necessarily honed in trial practice, and that there is advantage in having experienced appellate specialists look with fresh eyes to identify winning legal issues.
In Marriage of Shaban, 88 Cal. App. 4th 398, 407-10 (2001), the California reviewing court lent its approbation to this analysis, rejecting “out of hand” a litigant’s objection to paying for his wife’s appellate representation upon his assertion that “most of the work that would have to be done by appellate counsel on appeal had already been done in connection with the trial.” The Court made the following points:
– appellate work “is most assuredly not the recycling of trial level points and authorities.” Appellate briefs receive greater judicial scrutiny than trial briefs because three or more judges will read them and those judges work under comparatively less time pressure and will be able to more thoroughly study the work product;
– appellate court precedent may be open for reexamination and critical analysis and thus appellate counsel “must necessarily be more acutely aware of how a given case fits within the overall framework of a given area of law” and the effect a particular ruling will have on the common law as it is continuously developed;
– appellate counsel have much more freedom to explore the contours and implications of the respective legal positions and that means additional research that trial counsel simply will not have had the time to do;
– “the appellate practitioner is on occasion likely to stumble into areas implicating some of the great ideas of jurisprudence, with the concomitant need for additional research and analysis that takes a broader view of the relevant authorities.”
The Court reemphasized its point, stating that any appellate practitioner who merely recycles the trial attorney’s work without reconsideration or additional research is producing a substandard product.
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