• Put ‘Em in Coach: Why an Appellate Attorney Should be Added to the Trial Team
  • May 10, 2012
  • Law Firm: McCumber, Daniels, Buntz, Hartig & Puig, P.A. - Eagleville Office
  • Litigation is expensive.   That opening sentence exhibits two hallmarks of good appellate writing.  First, the sentence is brief.  Second, the reader is likely to agree with the idea expressed.   The trick to good appellate writing is to string several of these easily digestible and undeniable ideas together to convince the reader to accept a more controversial premise.  For purposes of this article, the premise is that engaging an appellate attorney at an early stage provides a benefit to the client worthy of its cost.

    Admittedly, every case does not require the involvement of an appellate attorney.    Some cases lack the sophistication or potential exposure to warrant the retention of an appellate attorney (another hallmark of good appellate writing is to explicitly concede weak points).  But for those cases with some level of complexity or potential exposure, the disparate skills of the appellate and trial counsel mix well to promote both a positive and unassailable result.     

    Trial attorneys are often specialists.   Trial attorneys work for years to perfect certain methods and tactics to produce results in their area of expertise.  Trial attorneys also work in the trenches.  They constantly work with their clients and butt heads with their opponents.  This day-to-day struggle for their client can lead to a very myopic approach.  Due to their proximity with the subject matter, trial lawyers are always at risk of conflating their passions for their client with a belief that the underlying merits of their action are strong. 

    By contrast, appellate attorneys are usually generalists.  An appellate attorney continually surveys the entire legal landscape looking for trends and novel legal approaches.  A good appellate attorney will seek ways to tinker with these trends and legal innovations and expand them to new areas of the law.  The appellate attorney is also more apt to be detached from the passions of the case.   This detachment is not because they do not believe in the client’s plight.  Instead, the detachment is necessary because the appellate attorney’s audience is a panel of seen-it-all-before judges and not novice wide-eyed jurors.  A panel of grizzled veterans is less likely to be swayed by the attorney’s passions.  Instead, the judges will be looking for the attorney to provide rock-solid analysis grounded in the proven facts and established law.

    How do the different skill sets harmonize to provide a benefit to the client?  First, the appellate attorney’s input is invaluable at devising trial strategy.   The appellate attorney provides a fresh set of eyes removed from the personalities of the case.  This allows the appellate attorney to provide a frank look at the weaknesses and strengths facing each party as they try to make their case.  An appellate attorney can assist the trial attorney to adapt their case to the trends or changes in the law.  An appellate attorney can accomplish this by suggesting areas for discovery or potential topics for dispositive motions.

    An appellate attorney can also be useful in preparing motions for the trial attorney.  The foremost skill  of a good appellate attorney is the ability to write persuasively.  A trial attorney is busy with trial preparation.      Allowing the appellate attorney to write the motions best utilizes the skills of both attorneys.  And although these motions should not be seen as a first-draft of an appellate brief, it permits the appellate attorney an opportunity to become familiar with the ins and outs of the case.  See In re Marriage of Shaban, 105 Cal.Rptr. 2d 863 (Cal. 4th Dist. Ct. App. 2001).

    In order for an issue to be heard by an appellate court, the trial counsel must properly preserve the presumed error.   Preservation of error is most often viewed as establishing the record and making proper objections at trial.  But the process begins as early as the pleading stage and continues throughout pre-trial activity.  An example of the vigilance required to preserve appellate claims currently played out in our office.  In Pennsylvania, a party alleging professional liability must file a certificate of merit.  The certificate of merit is a statement by counsel noting that a qualified expert has determined that the allegations are meritorious.  Failure to file the certificate of merit leads to dismissal of the action.   Often attorneys challenge the lack of certificate of merit by preliminary objection.   However, the Pennsylvania Rules of Civil Procedure provides a different method for challenging the lack of a certificate of merit, the submission of a praecipe to enter non pros.  The appellate courts have not addressed whether filing a praecipe is the sole proper vehicle to seek dismissal for failure to file a certificate of merit.  At least one trial court, however, has asserted that it is the sole vehicle to seek dismissal.  See White v. Behlke, 69 Pa. D. & C.4th 353, 364-66 (Pa. Com. Pl. 2004).  A prudent trial attorney would follow the precedent of this one trial court in order to assure the viability of the issue on appeal.

    Trials often go in unanticipated directions.  No matter how thoroughly a trial attorney has prepared, an unexpected legal issue is sure to arise.  A good appellate attorney needs to be proficient in legal research and therefore is able to provide trial counsel with this indispensible research.   Delegation of this last-minute legal research to appellate counsel also frees up trial counsel to concentrate on activities in the courtroom.

    Despite appellate counsel and trial counsel working in perfect tandem, the end result may not be positive.  Decisions need to be made concerning which issues to present in post-trial motions to the court.  A threshold determination is whether the court will consider the error prejudicial.  If the error is harmless, the court will not offer relief.  This is a question frequently confronted by appellate counsel when prosecuting appeals.  Therefore, an appellate counsel is in a better position to make a determination about whether the error will be seen as prejudicial by the court. 

    Further, the presentation of too many alleged errors during post-trial motions could hurt the chances for success.   Meritorious assertions simply get lost within the larger stew of complaints.  Therefore, it is best for appellate and trial counsel to work in tandem to winnow the potential errors to those most likely to provide for reversal.  This is an important task as those claims abandoned in the post-trial motion risk being lost during appeal as well. 

    The irony is that the goal is to avoid an appeal by retaining an appellate attorney at an early stage.  This team approach to litigation provides the client with the best possible representation.  Yes, costs should always be weighed against the benefits.  But the costs are not fixed.  Many of the activities of the appellate attorney during trial are not duplicative of the trial counsel.  Furthermore, the use of the appellate attorney can be molded to the needs of each case.  It may be that there is one issue that worries trial counsel and he feels the need for the opinion of appellate counsel.  If the case is complex or the stake large, perhaps it is feasible to have the appellate attorney take a more active role.


    About the Author: Marc L. Penchansky is an associate at McCumber Daniels and practices in the firm’s Philadelphia area office where he concentrates on appellate matters and the defense of the firm’s clients.  For more information on this topic, please contact Mr. Penchansky at [email protected].