Appellate specialization and the art of appellate advocacy.

• Author: Carroll, Jennifer S.
• Position: Florida

Appellate practice has developed over the years into a specialized area of the law. In Florida, appellate practice was officially recognized as a specialty in 1994, when The Florida Bar Board of Legal Specialization and Education approved appellate practice as a "certified" field.

What is "appellate practice," and why is it considered a specialty? How does appellate practice differ from trial practice? Is there truly an "art" to appellate advocacy? This article attempts to address these questions and to highlight the unique skills involved in handling appeals.

What Is Appellate Practice?

To best understand exactly what appellate practice is, one must first understand what it is not. Simply stated, appellate practice is not trial practice. At first glance, such a description appears obvious. However, appellate judges often express amazement at the number of practitioners who treat the appellate process as nothing more than a continuation of the trial. Many attorneys view an appeal as a "second chance" to argue their case before a second jury, and to present what they deem to be the crucial facts and equities which will make all the difference. These attorneys often become mired in the types of factual disputes that weigh so heavily at the trial level (e.g., witness credibility issues, emotional pleas), but tend to distract the appellate court from significant legal issues on appeal.

Appellate judges perceive a difference between the advocacy skills necessary to litigate a case in the appellate court, as opposed to the trial court. As explained by Justice Leander Shaw of the Florida Supreme Court:

[T]here is a difference between the skills needed in litigating a case before trial and appellate courts. Trial litigation--focusing on jury trials--requires jury arguments that are generally structured to lead ordinary people to decide something based on compelling emotional arguments. True, the individual juror needs to be informed of the law, the facts of the case, and how a certain result is called for in the particular circumstance. The trial attorney, however, will invest a substantial portion of any argument to the jury in a fact intensive emotional call to justice in order to obtain a favorable decision. Thus, the ability to evoke an emotional response is important in making jury arguments. In appellate advocacy, however, the emphasis switches and the attorney must stress the application of law to facts--keeping in mind the appellate court's concern for uniformity of the law and doing justice. Thus, the ability to present thoroughly researched legal arguments and to present them in a very orderly and logical manner becomes more important.

Letter to author dated March 17, 1999.

In fact, emotional pleas relied upon by the trial attorney to convince a jury are considered inappropriate at the appellate level. As Justice Shaw has observed:

The most common mistake in presenting oral argument to the Supreme Court is when an advocate makes a boisterous jury...