3 Reasons a Trial Lawyer Should Retain an Appellate Specialist as Co-Counsel

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This post is the second in an ongoing series about maximizing a party’s chances of prevailing on appeal.  The trial is over, the verdict is in and the loser wants to appeal.  Should the same lawyers who handled the trial also handle the appeal themselves or retain an appellate specialist as co-counsel?  Consider the following benefits to retaining an appellate specialist:

1.  For appellants, the trial lawyer’s arguments obviously were not persuasive at the trial level.  Simply repeating the same arguments on appeal is not likely to succeed.  Moreover, following the intense experience of going through trial, a second opinion may be warranted.  As observed by Justice Kenneth R. Yegan in Estate of Kilkison (1998) 65 Cal.App.4th 1443:

[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 and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.

Three Ways a Trial Lawyer Can Strengthen the Odds of Winning on Appeal

This post is the first in an ongoing series about maximizing a party’s chances of prevailing on appeal.  Recent court statistics show that in California civil appeals result in affirmance 79 percent of the time, reversal 18 percent of the time and dismissals in the remaining 3 percent of cases.  Given the statistically low chance of obtaining a reversal on appeal, it is important that trial lawyers take steps necessary to improve their chances of prevailing on appeal.

1.  Preserve and document your arguments. Generally, the court of appeal will not consider an argument raised for the first time on appeal.  Common examples of issues that the court will not review on appeal are evidentiary objections not made at trial, affirmative defenses not pled in an answer and claims not pled in a complaint.  (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767).  The Court of Appeal generally limits its considerations to arguments appearing within the four corners of the appellate record.  If you are appearing at a court such as Los Angeles Superior Court, which no longer automatically provides court reporters, consider hiring a court reporter in advance to enhance your appellate rights.  If you have made arguments in chambers and lost, consider repeating those arguments on the record to preserve the issue on appeal.

2.  Consult an appellate specialist as early as possible.  Many times a trial lawyer will not consult with an appellate specialist until after the appellate process is well underway and sometimes key