Appellate law requires skills different from trial litigation skills.
Successful trial lawyers excel at gathering evidence and then presenting it in a coherent fashion to a trier of fact while reacting swiftly to unexpected developments in the courtroom. By contrast, the effective appellate lawyer is adept at persuasive writing and the oral presentation of complex legal concepts. The skillful appellate lawyer is a superior writer, legal researcher, logician, and oral advocate.
Appellate rules of procedure are different from trial court rules.
Appellate practice is governed by complex procedural rules different from trial court rules. And like all rules of procedure, the appellate rules have many traps for the unwary. The appellate expert is intimately familiar with the appellate rules. By contrast, most trial lawyers are not, putting them at risk of making mistakes that can compromise their client’s rights or even cause outright dismissal of the appeal.
Appellate lawyers view the case from the same perspective as appellate judges.
Because the appellate specialist is not often involved in the trial phase, he or she views the case from the same perspective as the appellate judge—through an objective review of the factual record and the legal issues rather than based on information and impressions formed during pretrial discovery and trial. This perspective allows the appellate specialist to offer a dispassionate evaluation of the appeal because he or she, like an appellate judge, is unburdened by preconceptions and emotions formed during the trial phase.
Appellate lawyers know their audience – the appellate judges.
Capable trial lawyers gain an advantage by knowing the nature of the judges and juries in the jurisdictions where they practice. Appellate specialists bring the same advantage to appeals through their knowledge of the personalities and inclinations of appellate judges.
Appellate specialists are skilled oral advocates.
Most appeals culminate with an oral argument to a panel of three or more judges. An appellate oral argument has no corollary in trial practice, where legal argument, when it occurs at all, is to a single trial judge. The effective oral advocate is not only fully conversant with the facts and legal issues in the case before the court, but is also familiar with related areas of law and can thoughtfully address the judges’ concerns about how other areas of law will be affected by a decision in the pending case.