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 firstname.lastname@example.org.