For most litigants, the appellate arena likely will be the final opportunity to obtain, or retain, a victory. Therefore, quality counts more than ever, and serious thought should be given to who should handle the appeal. As the practice of Richard J. Clarkson is dedicated exclusively to appellate advocacy, he is occasionally asked why someone should hire appellate counsel instead of allowing trial counsel, already familiar with the case, to litigate the appeal. While that question has no absolute answer, there are certain irrefutable and obvious (and maybe not so obvious) benefits to be gained from entrusting an appeal to someone disciplined in the area. Discussed below are some of the many important reasons for retaining an appellate expert. 

•  Appellate Practice is a Specialized and Unique Discipline 
•  Appellate Procedural Rules are Complex and Varying 
•  Appellate Counsel Offers a Fresh & Objective Perspective 
•  Litigating an Appeal Demands Quality Time and Attention 
•  Appellate Practitioners are Familiar with Court Personnel 
• Appellate Counsel Signals Seriousness and Encourages Settlement 

~Appellate Practice is a Specialized and Unique Discipline~

Appellate advocacy is just as much a specialty of law as is, for example, contracts or bankruptcy, and engenders many skills unique from those involved in trial litigation. In particular, trial attorneys should be deft at eliciting evidence through discovery, examining witnesses and making spontaneous tactical decisions before a court or jury. By contrast, appellate counsel must be accomplished at persuasive writing, legal research, mastering the factual record on appeal and developing a solid comprehension of pertinent legal principles, subtle distinctions and emerging legal trends. Appeals lawyers also must examine and advance creative analogies and policy issues that shape and test the frontiers of the law. Further, the skill, and cool detached temperament of the appellate attorney needed to persuade the appellate tribunal varies greatly from the emotive nature of the subjective trial lawyer endeavoring to win over a jury. 
Paramount among the skills necessary for successful appellate advocacy are brief writing and oral argument, the importance of which cannot be overstated given that an ability to communicate effectively is the bedrock of an attorney's attaining competence in the law. One appellate tribunal has noted that "an appellate court's judicially neutral review of the record is no substitute for the careful, partisan scrutiny of a zealous advocate; that it is appellate counsel's unique role to discover and highlight possible error and present it both orally and in writing to the appellate court" (Hamilton v. State, 573 So. 2d 109, 110-111 [1991]). 

Brief Writing

"An ability to write clearly has become the most important requisite for an American appellate lawyer", says our Nation's Chief Jurist, and "brief writing can be called a combination of art and science" (Remarks of Chief Justice William Rehnquist, U.S. Supreme Court, to the ABA Appellate Practice Institute, May 29, 1998, reprinted from the Journal of Appellate Practice and Process, Vol 1, No. 1, 3-4 [Winter 1999]). Because appeals generally are decided on the briefs, an inability to write persuasively can be fatal to a party's position. It follows, therefore, that an attorney "should put the kind of effort and skill into writing a brief that a poet or novelist puts into his art" (Pannill, Appeals: The Classic Guide, 25 Litigation 6, 7 [Winter 1999]). Yet, "brief writing has an unusual distinction in the law: More good lawyers do it badly than just about any other aspect of professional practice" (Rubin, Better Appellate Brief Writing, In Brief, The Practical Litigator, No. 2, March 1997). "The purpose of a brief * * * is to persuade. Unfortunately, too many briefs fail to deliver" (Hon. Roger Miner, Professional Responsibility in Appellate Practice: A View From the Bench, 19 Pace L. Rev 323, 334 [1999]). Because "practice makes perfect", however, appellate practitioners are adept at crafting articulate and persuasive appellate briefs. Thus, since quality counts, one should consider hiring an appellate specialist as counsel to write briefs and argue appeals." 

Oral Argument

Strong oral argument skills are likewise key to successful appellate advocacy. "Oral argument is normally an essential part of the appellate process. It is a medium of communication which for many appellate counsel and many judges is superior to written expression. It provides a fluid and rapidly moving method of getting at essential issues." (ABA, Standard Relating to Appellate Courts, § 3.35 [1977]).
The primary goals of oral argument are to focus the appellate justices on the true issues on appeal and effectively field their questions in a manner that advances the client's position; goals that demand the utmost familiarity with the record and an ability to anticipate inquiries. As U.S. Supreme Court Justice William Brennan has observed, "oral argument is the absolutely indispensable ingredient of appellate advocacy", providing a "Socratic dialogue between Justice and counsel" (Harvard Law School, Occasional Pamphlet No. 9, pp. 22, 23 [1967]). Thus, the talents needed for proper oral advocacy wholly differ from the oratory talents required to argue before a trial judge or jury. Disfavored by an appellate bench are emotional arguments or the practice of reading from a prepared script of the argument. Also, given the very limited time constraints for oral argument, appellate attorneys employ their aptitude for presenting only their best or key arguments to the court, and even knowing when to sit down. 

Appellate Counsel as Litigation Strategist

Co-counseling with litigation strategists and appellate advocates at the outset of a case for assisting trial counsel and monitoring the trial is also an important and wise consideration. As Judge Lawrence Pierce of the U.S. Court of Appeals has observed: 
Too often, attorneys forget that the potential for success on appeal begins at the pre-trial preparation stage, continues during the trial phase (and perhaps post-trial phase) and generally concludes with the submission of one's brief and oral argument on appeal. If appellate and trial counsel are one and the same person, then it is essential to view what transpires at the trial through a prism of appellate considerations. If they are separate counsel, then * * * it may be wise for appellate counsel to be associated with trial counsel both before and perhaps even during the trial to see to it that a proper record is made in the event that an appeal becomes necessary. That this course of action can have merit seems borne out by the fact that, more often then one would expect, cases are lost on appeal due to the failure of counsel at the trial level to make a proper record, or to raise arguments or objections, or to submit requests to charge for the judge's consideration in jury trials. Developing a proper record can also be important in a case in which a pre-trial dispositive motion has been made -- e.g., a motion that seeks dismissal of a complaint for failure to state a cause of action or seeks a grant of summary judgment. Often, it is a wise course to have appellate counsel peruse such pre-trial motion papers before they are submitted or before a response is filed. 
(Hon. Lawrence W. Pierce, U.S. Court of Appeals, 2nd Circuit, Appellate Advocacy: Some Reflections From the Bench, 61 Fordham L. Rev. 829, 834-835 [1993]). 

~Appellate Procedural Rules are Complex & Varying~ 
Texas' appellate judicial system comprises the fourteen Court of Appeals and the Supreme Court.  The rules of appellate practice derive from the State Constitution, state statutes, individual court rules and unwritten rules and customs. The Federal Rules of Appellate Procedure, individual Circuit Court rules and the U.S. Supreme Court rules are likewise diverse and complex.
These procedures govern all stages of the appellate process, from font size and citation form to whether an appeal is permissible, whether an issue is preserved for appellate review, the time within which to appeal, the proper method and form of the appeal, how to protect your right to oral argument and appropriate motions unique to each appellate court. Failure to strictly comply with these rules can have the disastrous result of a limited review of the case or even the outright dismissal of an appeal on a procedural ground without regard to its merits. (White Budd Van Ness Partnership v. Major-Gladys Drive Joint Venture, 811 S.W.2d 541 [Tex.1991]).  Thus, a comprehensive mastery of these rules is imperative not only when practicing in the appellate courts, but during the trial stage as well. 
An appellate practitioner, proficient at navigating these varied and complex rules and their interplay with one another, is infinitely more effective than an attorney unsure of the appellate practice. As a result, appellate attorneys can devote their time to the substance of the appeal rather than researching and learning the nuances of appellate procedure -- thereby handling the appeal efficienttly and cost-effectively. In addition, appellate counsel can minimize the risk of sanctions imposed by the court as well as malpractice claims filed by disgruntled clients whose case was dismissed or lost because of failed adherance to the rules. 

~Appellate Counsel Offers a Fresh & Objective Perspective~ 
A fundamental advantage to hiring appellate counsel is the fresh and objective prospective essential for successful appellate advocacy that such a specialist offers. "[T]rial attorneys who prosecute their own appeals * * * may have 'tunnel vision.' Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity" (Estate of Gilkison, 65 Cal.App.4th 1443, 1449 [1998]). Although an appeal will be decided only on "the record" made in the lower court, as human nature dictates, the mind of a trial attorney "cannot free itself of matters which entered in during preparation for trial but which did not get into the record" (Hon. Paxton Blair, Appellate Briefs and Advocacy, 18 Fordham L. Rev. 30, 46-47 [1949]). Whereas, unburdened by personal knowledge, "[t]he appeals specialist views the case precisely as does the appellate court, through the little square window of the record, so to speak, and not as something viewed from the great outdoors" (id.). 
These skills also play a important role in properly evaluating the merits of the appeal, or just particular issues, which allows the client to make an informed decision as to whether to pursue often costly appellate intervention. Appellate specialists are familiar with what issues and arguments are likely to be successful on appeal, the trends in appellate opinions and the appellate decision making process. A client's best interests are not served by appealing an adverse decision when there is little or no chance of prevailing. Thus, an appellate expert's objective assessment of a matter prevents the wasting of judicial resources as well as the unnecessary expense of an appeal. 
Furthermore, the burgeoning caseloads of appellate tribunals demand that only issues of serious merit be raised, even if an appeal presents a myriad of possible claims of error. Appellate counsel, expert in identifying and developing compelling grounds, will avoid using the judicially frowned-upon "everything but the kitchen sink" approach on appeal (Hon. Lawrence W. Pierce, U.S. Court of Appeals, 2nd Circuit, Appellate Advocacy: Some Reflections From the Bench, 61 Fordham L. Rev. 829, 835 [1993]). 
"In the end, the appeal is a collaborative effort. The trial attorney 'knows the nuances of the record - where information is. The appellate attorney takes that knowledge and applies it to get the court's attention. He knows how to frame issues and research them'" (Mauro & Nicholson, For Appeals: Trial Counsel or Specialist?, Medical Malpractice Law & Strategy, Vol. VIII, No. 7, June 1991). 
Back to top 

~Litigating an Appeal Demands Quality Time & Attention~ 
To properly litigate an appeal, an attorney must devote appropriate time to compiling and reviewing the record, as well as performing extensive research, writing a persuasive brief and preparing for and presenting oral argument. Invariably, however, trial attorneys lack the required time to focus on these appellate tasks because their efforts are dedicated to trial litigation. Simply put, "'[i]t's impossible to do both'" (Mauro & Nicholson, For Appeals: Trial Counsel or Specialist?, Medical Malpractice Law & Strategy, Vol. VIII, No. 7, June 1991), and quite risky to try. Since their practice is dedicated exclusively to appeals, appellate attorneys necessarily focus all of their time on appellate matters, thereby ensuring quality attention to every appeal. 

~Appellate Practitioners are Familiar with Court Personnel~
Appellate courts are relatively small and close-knit entities. Therefore, attorneys who practice regularly in appellate tribunals become well known to the court, often enjoying solid professional relationships with court personnel and establishing firm reputations and credibility among the justices. This association often carries with it the invaluable advantages of obtaining more consideration and extra assistance from the court on matters ranging from appropriate courses of actions on procedural issues or the scheduling of oral argument (Mauro & Nicholson, For Appeals: Trial Counsel or Specialist?, Medical Malpractice Law & Strategy, Vol. VIII, No. 7, June 1991). In addition, the appellate attorney is familiar with the predilections and personalities of the judges sitting on the panel for the case, an indispensable benefit that allows for accurate anticipation of questions and discussions in preparation for oral argument of the appeal. 

~Appellate Counsel Signals Seriousness & Encourages Settlement~ 
"Retaining appellate counsel signals that the client is serious about taking the appeal, which may encourage settlement. Many appellate courts have settlement parts where cases can be resolved in conference before perfecting the appeal; a specialist's evaluation and handling in these parts may make all the difference" (Mauro & Nicholson, For Appeals: Trial Counsel or Specialist?, Medical Malpractice Law & Strategy, Vol. VIII, No. 7, June 1991). An appellate expert's evaluation of an appeal, whether positive or negative, often provides a basis for achieving settlement of the case in the appellate arena.