Understanding the art of appellate advocacy: why trial counsel should engage experienced appellate counsel as a matter of professional responsibility and legal strategy.

AuthorMandel, Roberta G.
PositionFlorida

Whether trial counsel should handle an appeal or turn it over to an appellate attorney is often debated. Clients may expect trial counsel to argue the appeal. This may not be the best idea. The qualities of a good trial lawyer are not always those of a good appellate lawyer. (1) Special talent or training is often needed to write a good appellate brief. What might have worked before a jury or trial judge may not be adequate for an appellate court. Unfortunately, trial lawyers sometimes fail to appreciate that appellate court review is much different than litigation in the trial court.

Judge Gary Farmer of Florida's Fourth District Court of Appeal aptly stated:

My own experience in both roles suggests that most of the time the trial lawyer is well-advised to bring in another lawyer to handle the appeal. This is not because appellate law is so arcane that only the cognoscenti can handle it. It is really because the lawyer who handled the trial is often unable to discern the appellate forest from the trial trees. Issues that consumed the trial lawyer are often of marginal significance at best on appeal; issues that seemed trivial during trial may become critical on review. (2)

Appellate judges view brief writing as the most important aspect of the appellate process, not a task to be relegated to the unskilled. (3) Writing an effective appellate brief takes a great deal of time. There should be few distractions in order to provide the best opportunity for continued focus on the appellate issues. Trial counsel may lack the uninterrupted time necessary to write a clear, persuasive appellate brief. Even if trial counsel has the time, it is the appellate lawyer who is more likely to ponder the best placement and choice of each word in the brief in order to ensure success. An experienced appellate attorney will be able not only to write a compelling brief, but also will provide an unbiased assessment to trial counsel regarding whether appealable issues exist and whether they were properly preserved.

Each time a case moves to the appellate arena, counsel must consider whether he or she has the requisite knowledge and skills to represent the client in the appeal. Rule 4-1.1 of the Rules Regulating The Florida Bar provides: "A lawyer shall provide competent representation to a client." Appellate advocacy is recognized as a distinct form of litigation and can take a tremendous amount of time. It requires doing research into areas of the law that trial practitioners infrequently encounter. Appellate litigation is full of pitfalls for the inexperienced.

It is essential that any practitioner considering filing an appeal become knowledgeable of the rules of appellate procedure. Those rules can only be effectively followed or employed when an attorney understands their foundation, their context, and their text. Appellate malpractice arises when a lawyer fails to exercise a reasonable degree of skill and care in the appeal of a client's case, causing injury to the client.

During Trial

A savvy trial attorney will engage appellate counsel to assist in the trial arena. This is especially important when a case involves complicated matters or issues of first impression. Appellate counsel can provide advice on the rules of evidence and procedure during the trial, advising trial counsel when to object and move for mistrial. Appellate counsel can also prepare and argue motions for summary judgment and motions for new trial, preserving and addressing the legal issues that may become critical on appeal. An appellate attorney is well aware that, in general, only issues that have been properly preserved are eligible for appellate review.

Determining "Final Judgment" and When It Is "Rendered"

An appellate practitioner may be able to more accurately assess and advise trial counsel on when an order or judgment is ripe for review. Art. V, [section]4(b)(1), of the Florida Constitution provides a party with the right to appeal a final judgment. The body of law interpreting the finality and appealability of orders is full of obstacles. Generally, only "final" orders are subject to appellate review. Whether an order constitutes a final judgment for appellate purposes is extremely important because the jurisdictional time begins to run immediately on the "rendition" of a final order.

Florida Rule of Appellate Procedure 9.020(f) defines the term "order" as "[a] decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries." Court minute books are, therefore, not appealable. Oral pronouncements by the trial courts are also not appealable. In short, without a written, signed order, there is nothing to appeal. (4)

The law governing the appealability of final and nonfinal orders is a virtual minefield, and the failure to take the time to understand the rules and applicable...

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