When someone thinks of a lawyer, what usually comes to mind are the lawyers portrayed in movies, TV shows, and novels. They are the lawyers providing stinging questioning of witnesses and passionate speeches to juries. However, there is another type of lawyer whose exploits are not exciting enough for entertainment value, but essential in every case – the appellate lawyer.
Appellate lawyers do not address their arguments to juries, but to judges. If a party loses a lawsuit, it has the right to appeal the outcome to one or more higher courts. Both the state and federal courts have courts of appeals. All courts must ultimately follow the rulings of the United States Supreme Court. The appellate lawyer is the person who navigates the case from the trial court through the several appellate courts.
One important function of the appellate lawyer is to explain to the higher courts why their client did or did not receive a fair trial and why the lower court acted properly and should be affirmed, or acted improperly and should be reversed. The process of doing so involves scrutinizing the trial transcript, the evidence, and all of the judge’s rulings. Then, the appellate lawyer researches the law for any judicial decision that will support the client’s position. The appellate lawyer next presents their findings in a “brief.” Briefs are not always brief; sometimes they are 50 pages or longer. Each court has specific rules about the content and formatting of the brief and the appellate lawyer must know each court’s rules. Briefs are accompanied by an Appendix. The Appendix includes everything in the court record relevant to the appeal and that will the client. Some appendices are very short, and others contain several volumes. The appellate lawyer decides what will be included in the Appendix and oversees its assembly.
Finally, after the briefs and appendix are filed, the court will hold oral argument. During argument, the appellate lawyer has one last opportunity to persuade the judges of their client’s position. Usually, rather than being able to speak to or lecture the judges, the appellate lawyer must answer the judges’ questions. Oral argument is a totally separate skill than speaking to a jury. While emotional arguments are made to juries, logical legal arguments are made to judges. No matter what question a judge asks, the appellate lawyer must answer the question and, at the same time, present their important legal positions. And all of this must be done against a ticking clock. Appellate courts give lawyers extremely limited time to argue their case. Each lawyer has between 10-30 minutes, depending on the court and the complexity of the case, and when the time is up, the microphone is turned off.
Appellate lawyers have two other important roles. First, they prevent errors that could result in a new trial. This is done by consulting with the trial lawyer to make certain the trial lawyer avoids evidentiary mistakes and proves each item that the law requires. In very complicated cases, the appellate lawyer may even be in the courtroom during the trial to oversee the trial with an eventual appeal in mind. Second, because the appellate lawyer’s expertise is legal research and writing, they are often asked to write important trial court documents and briefs.
Most large law firms that represent insurance companies and large corporate clients have appellate departments. Most firms representing people who have been wronged have to hire an outside firm that specializes in appeals. However, at Lento Law Group, we have appellate counsel on staff who represent our clients and advise our trial counsel.