When To Hire Appellate Counsel.
The sooner the better. Even in a simple case, there is much work to be done between the entry of final judgment in the trial
court and the submission of the Appellant’s Brief. So, ideally, you should retain an appellate specialist for a consultation
before you must take the first step in your appeal (i.e., filing a notice of appeal, which must usually be done within thirty
days of the entry of final judgment).
The Value of Hiring an Appellate Specialist. Most lawyers do not handle appeals.
The appellate process is unique, and bears little resemblance to trial court litigation. Clients should always consider hiring
an appellate specialist to represent you on appeal.
Sending a Signal. Retaining an appellate specialist can help improve
your settlement posture by signaling to your opponent that you are serious about the appeal, and that you will press every
possible avenue to gain a favorable result.
Specialized Skills. Appellate specialists must rely on skills that are not
always required of trial lawyers. Trial lawyers must be skilled at discovering facts and presenting them at trial, mostly
through oral testimony. Trial lawyers must sift through oceans of discovery to find critical evidence, must present their
case through examination and cross-examination of witnesses, and must use oral argument to persuade a jury of non-lawyers.
These are valuable skills, but they are not the skills demanded of the appellate specialist. On appeal, the critical skill
is written argument. Some cases are decided entirely on the briefs, with no oral argument. Appellate counsel must produce excellent
briefs to give their client the best chance of success. Good writing involves far more than word choice and syntax. The argument
must be compelling on both an emotional and a logical level. The brief must convey your core points concisely, to gain the
attention of appellate judges burdened with hundreds of pages to read each day. And the brief must make complex issues seem
simple. This type of writing requires constant revision, patience, and experience. Additionally, no appeal can succeed without
expert legal research. Appellate specialists should love legal research, rather than see it as a necessary evil. And, especially
for an appellate brief, the same person should do the research and the writing. Any lawyer who does not enjoy legal research
probably should not be an appellate lawyer. When an appeals court does hear oral argument, the argument is quite different
from a presentation to a jury over the course of days or weeks. The appellate oral argument is brief, often just fifteen minutes
long, and extremely intense. Appellate counsel must be able to intuit from the judges’ questions what concerns them
and what might persuade them.
Specialized Knowledge. Success on appeal often depends on selecting the proper issues to appeal. Skilled appellate
counsel resist the temptation to raise every conceivable issue and make every conceivable argument, no matter how far fetched.
Only the stronger issues and arguments should be presented to the court. Good appellate arguments are often lost amid a flurry
of weak ones, and their credibility suffers through “guilt by association” with the weak arguments. Every
appeal involves consideration of the appellate “standard of review” – a concept that plays no role in the
trial court. The Appeals Court will always ask what standard of review it should apply to each issue raised on appeal. Should
it decide the issue anew, with no deference to the trial court? Should it defer to the trial judge, unless he or she abused
his or her discretion, or unless the trial judge’s finding was “clearly erroneous”? Success on appeal often
depends on which standard of review the Appeals Court adopts. Finally, appellate procedure is highly specialized, and is completely
different from trial court procedure. Appellate courts are particularly unforgiving about technical violations. Missing a
deadline or violating some aspect of the rules may result in the dismissal of an appeal.
Other Writing and Editing Tasks. In addition to handling appeals, I
offer other brief writing and consultation services to other attorneys. I can draft or assist in drafting: critical motions
oppositions in the trial court; jury instructions; proposed conclusions of law for bench trial; and post-trial motions for
relief pending appeal. I also offer legal research services.
Legal Fees for Appeals. I handle appeals on either an hourly or a flat-fee
basis, to be negotiated in each case. My fee quote will take into consideration the number of issues on appeal, the complexity
of the issues, and the scope of the trial court record. Both my flat fee and my hourly rate include all legal research costs.
I subscribe to online legal research services and have access to the Boston College law library. My fee also includes all
in-house overhead costs. Outside expenses, such as court filing fees, travel expenses, the cost of obtaining transcripts,
professional printing of the appendix and briefs, etc., are charged separately. The fee and estimated expenses must
be paid in advance. I deposit the sums in my client trust account, and draw against this account only as services are performed
and expenses are incurred. Under my standard fee agreement, I do not draw any portion of the legal fee until I file an appellate
brief. Any estimated expenses amounts that remain unused will be returned to you. Before I begin work on any appeal, the client
and I sign a fee agreement that governs the terms of our relationship.
