• "I Could Swear ..."
  • September 27, 2012 | Author: Laurie Hepler
  • Law Firm: Carroll, Burdick & McDonough LLP - San Francisco Office
  • Trial lawyers are human, and frequently remember things differently than the record shows they happened. I've tried cases (first-chair and supporting), and I understand. The experience is simply too intense, too fast-paced, and too deep in "advocate" mode for most lawyers -- people, it's rumored -- to distinguish clearly between what they intended and what actually occurred for every witness, argument and document. This can also be true of hard-fought hearings on summary-judgment, class certification, or other key motions, especially when the arguing counsel did not write the papers.

    Therefore, unless you had an objective client representative present throughout the proceedings, and sometimes even if you did, you need independent advice on prospects for appeal.

    • The written record is all that counts. Tone of voice, facial expressions, and body language add layers of meaning at trial that are completely invisible to the Court of Appeal.
    • Some issues with record-preservation can be resolved; others need to be "worked around," or simply accounted for as a challenge on appeal. Most trial counsel have little or no idea they exist.
    • Advocates get deeply invested when they're in the trenches. That's what you need for trial, but not when it's time to evaluate an appeal that total strangers will decide.
    • Within limits, you can make some new arguments on appeal -- if you have the capacity to step way back and see things creatively.
    • The practical message: All counsel for the same client are on the same team, but the appellate stage of litigation requires a fresh mindset.

    The practical message:   All counsel for the same client are on the same team, but the appellate stage of litigation requires a fresh mindset.