Any business owner considering an appeal should know that it is quite a different game in the appellate court. Since she focuses on appellate litigation, Smart Business asked Kim Kocher, a partner at White and Williams LLP and chair of the Philadelphia firm’s Appellate Practice Group, to explain the differences between everyday trials and the appeals process.
What is the difference between an appellate specialist and a trial attorney?
Their focus is completely different. The trial attorney is focused on developing the factual record, persuading the fact-finder with the evidence, and establishing/defeating witness credibility. The task of the appellate specialist is to identify trial errors in the record developed at trial (the transcribed testimony and exhibits).
Instead of retrying the case, the focus of the appellate attorney is to distill the case into forceful legal arguments with an eye toward the appellate court’s limited standard of review.
It seems the original trial attorney would be quite familiar with the case. Should one use the same attorney for an appeal as for the trial?
There are important reasons for using an appellate specialist not just on appeal, but at the post-trial stage. In terms of familiarity with the case, quite often the trial attorney has an impression of the facts that is not borne out by the cold record. The appellate attorney will carefully review and digest the record with the same perspective as the appellate court. After review of the record, the experienced appellate attorney will select and craft the issues, and may spot issues overlooked by trial counsel, that are worthy of appeal.
What do you tell clients about the emotional investment in a case both their own and their trial attorney’s?
The emotional investment in a case of both the client and trial attorney often plays an exaggerated role in the decision to take an appeal and what issues to appeal. I try to provide my clients with an objective, dispassionate evaluation of the chances for success on appeal to assist them in making a well-informed decision.
How do the appellate rules differ than the trial rules most of us are familiar with?
The appellate courts are governed by a different set of procedural rules than the trial courts. There is very little overlap. Even motions practice, content of briefs and formal requirements differ significantly.
Additionally, certain appellate rules are jurisdictional, meaning that noncompliance with the rule may result in a dismissal of the case. Because the appellate rules can create dangerous traps for the inexperienced lawyer, it is important to have an attorney well-versed in the applicable rules.
When is it appropriate to appeal a verdict? How do you gauge the likelihood of success of an appeal?
The decision to take an appeal involves weighing multiple factors such as the risk or benefit of appellate precedent on the issue, the delay in resolution of the case, the size of the verdict, the cost of the appeal (including post-judgment interest and the premium on an appeal bond), and, of course, the chances of success on appeal.
The evaluation of the chances of success on appeal is, unfortunately, not an exact science. Relying on my years of experience, I gauge the likelihood of success on appeal based on objective scrutiny of the record, analysis of pertinent legal authority, the applicable standards of review and the jurisdiction at issue.
Do different types of actions or venues (administrative court, federal court, state court) involve different approaches upon appeal? Can you describe a few pertinent distinctions?
There are major differences in the post-trial and appellate procedure itself. For example, as between federal and state court, the timing of the entry of judgment differs. In federal court, judgment is automatically entered on the verdict. In contrast, in Pennsylvania state court, for instance, judgment is not entered until after resolution of post-trial motions. Knowledge of such a distinction is critical because the appeal period begins to run from the entry of judgment. Also, as between judicial and administrative appeals, the scope of review may differ. Where the appellate court is limited to review of the trial record, there may be an opportunity in an administrative appeal to further develop the record.
KIM KOCHER is a partner at White and Williams LLP and chair of the firm’s Appellate Practice Group focusing on appellate litigation and consultation in areas such as products liability, contract actions and insurance coverage matters. Reach her at (215) 864-6332 or email@example.com.