According to the official Indiana court
system Web site, the Indiana Court of
Appeals issues more than 2,500 opinions annually and had a record number of
cases before it at the start of 2007. By contrast, the Indiana Supreme Court hears
only about 100 cases a year, which means
the intermediate appellate court effectively
has final jurisdiction over thousands of
cases. Therefore, it’s prudent to strategize
about potential appellate issues even
before the original proceeding is decided.
Smart Business spoke with Geoffrey
Slaughter, an attorney with Indianapolis law
firm Sommer Barnard PC, to learn what role
appellate practitioners play on a legal team,
when they should be engaged, and the skills
and perspective they should provide.
What are the main differences between
appellate practitioners and the corporate
counsel that businesses usually have represent them?
Even first-rate trial lawyers often do not
have experience in appellate courts.
Effective advocacy to a finder of fact —
whether to a judge, jury, administrative
agency or arbitration panel — often
involves a different skill set than is required
before an appellate tribunal. The appellate
lawyer’s principal tools are analytical ability,
including knowing how to identify and
frame the key legal issues, and writing skills,
so that even the most complex legal and factual questions are presented clearly and simply to busy, generalist appellate judges.
Should the appellate practitioner be involved
in the original litigation?
The need for appellate counsel can arise
even before the trial court is through with
the case. Appellate proceedings sometimes
occur on an interlocutory (or interim)
basis, while the trial court’s proceedings
are still under way. The trial court may
have granted an injunction compelling one
party to take (or refrain from taking) certain action, requiring immediate appellate
review. Or the trial court may have issued a
discovery order that, if not promptly
appealed, would impose an onerous burden in time and money that could not be
meaningfully challenged after the trial
court has finished with the case.
Given their research and writing skills,
appellate lawyers can also be valuable in
various proceedings before the trial court,
such as preparing (or opposing) motions to
dismiss, motions for summary judgment,
motions for class-action certification and
other potentially dispositive matters.
Appellate lawyers understand the importance of taking the long view of a case,
rather than obtaining a short-term win in the
trial court that may not withstand rigorous
appellate scrutiny. The flip side is that appellate lawyers also can ensure that important
legal and factual questions are identified,
developed and preserved at trial, so they are
available on appeal as a basis for overturning an unfavorable ruling below.
Why is it helpful to involve an appellate
lawyer to assist with an appeal rather than to
rely only on trial court counsel?
Once the trial court’s judgment is final,
appellate counsel are useful in analyzing
whether, and how, the court’s decision is
vulnerable on appeal. And, of course,
appellate practicioners are seasoned in
prosecuting (or defending) appeals, both in the written briefs filed with the court and
in delivering oral arguments.
Appellate practitioners also understand
how to present an argument to a state or
federal appellate court of last resort, which
typically exercises discretionary jurisdiction over its cases. These courts usually
hear very few appeals as of right, where the
losing party is entitled to automatic review.
In the overwhelming majority of their
cases, these courts decide which appeals
they’ll hear and which they won’t.
Appellate practitioners with experience litigating in these courts, and who understand what issues are likely to interest the
justices, represent the client’s best shot for
maximizing (or minimizing) the likelihood
of obtaining discretionary review. If review
is granted, experienced counsel also know
how to present arguments in the way most
likely to prevail on the merits.
How should appellate counsel be evaluated
and selected?
There is no substitute for experience and
a track record. The most effective appellate counsel are experienced in appellate
matters generally and in the rules and procedures of the relevant appellate court
specifically.
The client should do its homework. Ask
around. How many cases has the lawyer litigated in that court? Is the lawyer a novice
or a battle-scarred veteran? Inquire
whether any colleagues or competitors
have hired, or been opposite, the lawyer.
Meet with the lawyer. Is the lawyer articulate and well-spoken? Read the lawyer’s
written work-product from other cases. Do
the briefs read well? The client needn’t be
trained in the law or in the nuances of
appellate practice to know whether a piece
of legal writing is persuasive. If it doesn’t
persuade you, it’s not likely to persuade a
court. If it confuses you, or is so boring you
can’t get past the first page, a judge is likely to have the same reaction.
GEOFFREY SLAUGHTER is an attorney with Indianapolis law
firm Sommer Barnard PC. Reach him at (317) 713-3606 or
[email protected].
