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Your Appellate Lawyer: A User's Guide

(Or Why You Need an Appellate Specialist)

By: Christopher V. Carlyle and Shannon McLin Carlyle

Introduction

A dazed litigator walks out of the courthouse into blinding Florida sunlight, and searches the parking lot for her car. In her car is her cell phone, the very phone that she will use to call her client. However, she is in no hurry to make the call, and she slowly ambles over the asphalt and wonders how it could have gone so wrong.

What will she tell the client? That, after more than a year of litigation, with trial months away, the judge somehow granted the defendant's motion for summary judgment? That this is rare, obscure, perhaps even outrageous, and the judge was wrong? That, despite the obvious error, the only route available is to appeal?

And, what about an appeal? The last one she did was what - maybe three years ago? It was far more time consuming than she had anticipated, a critical document was excluded from the record and, by the time she figured that out, it was too late to argue it effectively, and - worst of all - she hated doing it. She longed to be in the courtroom, in a deposition, meeting with a client, anywhere but stuck behind her computer day after day, endlessly writing, researching, and worrying about all those obscure deadlines. Cars shimmer in the midday heat, as she searches and thinks.

She spots the car, opens the door, and turns on the engine. As the air conditioning kicks in, she grabs her phone, and dials. However, she does not call her client. That can wait a moment. Instead, she calls a friend from law school who she heard practices appellate law. Her friend answers, and the litigator, still smarting from the ruling, tells him what happened that morning. After hearing the story, the friend asks, Well, who's your appellate lawyer? The litigator confesses that she doesn't have a regular appellate lawyer: She hadn't really considered it before. She then asks some tough questions.

Why Should I Hire An Appellate Lawyer?

The appellate lawyer first focused on reasons apparent from the brief story he just heard, then added a few more.

Go with what you know.

As the appellate lawyer pointed out, it had been three years since his friend had handled an appeal. Wouldn't the chances of success be greater if the appeal was handled by someone who had done dozens of appeals in those three years? While many lawyers think that doing an appeal is a piece of cake because they wrote a few briefs and did moot court in law school, the reality is that the skills needed to successfully handle an appeal are honed, as are all skills, with practice. Think of it this way: would it be fair to assume that a busy, working litigator would have an advantage in the courtroom over a lawyer that had not tried a case in quite some time, and had only tried a few in his career?

Additionally, the skills needed to be an effective litigator at the trial level are often quite different from those of the appellate lawyer. Trial lawyers, in general, work with the spoken word. They take depositions, argue motions, examine witnesses at trial. The appellate lawyer's stock in trade is the written word, and many authorities suggest that most appeals are decided on the briefs, not the oral argument. While it is certainly possible for one lawyer to possess the skills necessary for both types of work, it would stand to reason that ones strength will generally lie in the field in which one has chosen to practice regularly. It would also stand to reason that the exercise of certain skills on a regular basis tends to sharpen those skills.

Rules, rules, rules.

The litigator shared the story about not getting a document in the record, and the appellate lawyer commiserated. In the prior appeal, the litigator had assumed the document was part of the record, but as she worked on the answer brief, she noted that it had been excluded by the appellant's specific direction to the clerk. A motion to supplement was denied, and the appeal went forward without the benefit of the document. The case was reversed.

The appellate world, like the world of the probate lawyer, the civil litigator, or the criminal litigator, is governed by unique rules. The Florida Rules of Appellate Procedure often change, and appellate lawyers are aware of those changes. They are also aware of the procedural nuances present at the different district courts of appeal. Trial lawyers are often unaware of changes or the practical application of the rules. While it is true that a competent lawyer can look up the current state of the law or a rule, it is also true that mistakes in this regard are serious, and can lead to a visit with your friendly malpractice carrier. Appellate lawyers should be consulted to ensure that jurisdictional deadlines are not missed.

Time Keeps Slippin' Away.

Appeals are time consuming, and that time takes the litigator away from what she does best, litigating cases. The usual scenario finds the litigator with an already full schedule of depositions and hearings struggling to work on the appeal in between appointments and phone calls. As the deadline approaches, the work gets done late at night or on weekends. Work done in these circumstances is often not as sharp as it could be, and frankly, many litigators would rather do just about anything than spend days hunched over a keyboard.

Take a Step Back.

The appellate lawyer noted that the litigator seemed a bit emotional about the case, which was natural given the circumstances. Yet, being too close to the personalities, issues, and rulings can sometimes cloud judgment and have a negative effect on the appeal. The appellate lawyer, like the appellate judges who will decide the case, has only the cold record to draw from. The heated battles of the trial court may not come through in the record, and what seemed like the most important issue at one point may not actually be important when the record is examined with some detachment. A fresh, critical set of eyes can often help steer the appeal in the most effective direction. One appellate court has opined that: "[h]aving tried the case themselves, [trial attorneys] become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice." Moreover, a new perspective might reveal additional issues that the litigator had not previously considered. The old forest for the trees situation quite often occurs when a litigator is so deeply involved in a case for months or even years. What the litigator thought might be the strongest issue on appeal might assume a secondary position after considering the appeal as a whole, particularly in light of the various standards of review. What one perceives to be a fairly strong point might be weakened if it is subject to an abuse of discretion standard, while a seemingly minor point might look much stronger if it is considered de novo.

The litigator considered the points made by the appellate lawyer, and thought about the trial courts direction to opposing counsel to draft the order granting summary judgment. Certainly the language of the order, or of a judgment incorporating the order, will be critical on appeal. Which led to the next question:

When Should I Hire an Appellate Lawyer?

Most litigators have experienced a client meeting where the client bemoans the tragic mess that has somehow enveloped his life. After hearing the story, reviewing the relevant documents and thinking for a moment or two, the litigator has the following thought, which he or she might not dare say to the client: If only you had come to me at the start of this thing! All of this could have been avoided. But now, well Ð I'm not a miracle worker, but I'll see what I can do.

Similarly, it often makes sense to bring in an appellate lawyer before a final judgment is entered. Many an appellate lawyer has reviewed a record and seen an issue not properly preserved, an argument not raised, or a document that never became part of the record. Having an appellate lawyer on board during the trial phase with an eye trained on these issues can often result in an increased chance of success when the case reaches the appellate court. Associating appellate counsel makes sense because it helps to maximize the chances of a good result for your client. Associating early increases the likelihood that potential appellate issues will not be missed or waived for failing to preserve them.

Just as every lawsuit is unique, there is no definitive answer to the question of when an appellate lawyer should be brought in to a case. Factors to be considered include the complexity of the issues, the amount at stake, and the likelihood of appeal. Lawyers get a feel for cases that will likely end up on appeal, and bringing in an appellate specialist early can often help pave the road ahead. Tasks appellate lawyers are well suited for include formulating issues, litigation support, and crafting pleadings, proposed orders, jury charges, charge conferences, and the like. The focus here is to avoid potential appealable issues in the event your client must defend the trial courts rulings on appeal.

In the phone conversation, the litigator discusses having the appellate lawyer consult on the proposed order. They then discuss (a bit optimistically, perhaps) a role for the appellate lawyer after reversing the summary judgment on appeal. The litigator considers having the appellate lawyer assist with research, draft pre-trial memos and trial briefs as well as second chair the trial.

As the conversation wound down, and the litigator prepared to call the client, another thought crossed her mind. What if she hadn't known that her friend was practicing appellate law? Or, more generally:

Where do I Find an Appellate Lawyer?

The first place to start is The Florida Bar. The Bars Appellate Practice Section, which celebrates its 10 year anniversary this year, is over 1,300 members strong. Additionally, there are over 100 board certified appellate lawyers in Florida. If the need arises, appellate lawyers can be found that specialize even more narrowly. Some handle administrative appeals, criminal appeals, complex civil appeals, family law appeals, federal appeals, tax appeals, and the list goes on and on.

The discussion then turned to payment, and the inevitable question of:

How do I Pay an Appellate Lawyer?

Appellate lawyers often work under an hourly rate, modified hourly rate, contingency fee, flat fee, or some combination of those arrangements. In family law cases, appellate fees are awarded on the same basis as those of the trial lawyer: need and ability to pay. Quite often the client will enter into a separate retainer agreement with the appellate lawyer where the appellate lawyer bills the client directly. On the other hand, some litigators wish to retain a measure of control by paying the appellate lawyer directly and then passing the cost on to the client. If you go this route, make sure your engagement letter spells out that it may be necessary for you to retain other consultants. Even in a case where it appears that your client may not be able to afford additional counsel, there may be a contract or statute that could provide a fee for the appeal, for example, through a prevailing party attorneys fees provision or an offer of judgment.

Conclusion

As the litigator hung up the phone and prepared to call the client, her mood had improved slightly. Though the sting of the negative ruling was still fresh, she could at least call her client with a proposal to appeal the decision, and in a manner that would give her client the best chance of success at the appellate level.

Every litigator has occasion to be involved in an appeal. Some, in larger firms, have the resources of an appellate lawyer down the hall, though outside counsel with special expertise may also be brought in as the situation warrants. If you practice in a firm that does not have its own appellate department, help is only a phone call away. Whatever the case, before the need arises, it is prudent to know the answer to the question: Who's YOUR appellate lawyer?

Christopher V. Carlyle practiced complex commercial litigation and appellate law at Holland & Knight, LLP and McLin & Burnsed, P.A. before becoming a shareholder in The Carlyle Appellate Law Firm in 2003. Mr. Carlyle is a Board Certified Appellate Lawyer, a Certified Circuit and Appellate Court Mediator, and is AV rated by Martindale-Hubbell.

Shannon McLin Carlyle formed The Carlyle Appellate Law Firm after serving as a law clerk at the Fifth District Court of Appeal. Ms. Carlyle serves on the Executive Council of The Florida Bar's Appellate Practice Section and on the Appellate Court Rules Committee. She is also a Board Certified Appellate Lawyer, a Board Certified Appellate Court Mediator, and is AV rated by Martindale-Hubbell.