Building a cathedral: how to succeed in appellate court.

• Author: Whichard, Willis P.
• Position: LAW JOURNAL 2012

Appellate-court decisions rarely secure front-page coverage. When they do, it is usually because they ave resolved--perhaps temporarily, perhaps long-term--a highly controversial issue of social policy.

But absence from headlines does not indicate insignificance. Every month these courts render opinions that will govern business decisions throughout their jurisdictions or at least significantly influence them. The role of the business lawyer in developing and presenting these cases thus merits consideration.

Although an appeal comes late in the judicial process, preparation for it should commence when the lawyer initially encounters the case. From the first communications with the client, the lawyer should be keenly aware that the case could meet final resolution in a court of last resort. The initial conversation with the client thus should include the prospect of an appellate argument.

The careful lawyer will then think about the possibility of appeal throughout the litigation process. It may well be that an appellate court is where he or she secures the advantage, but if so, this gain may have had its genesis at a small step in the pretrial or trial process. Opposing counsel may well consider only the desired impression on the trial judge or jury at a given moment. This can be a fatal mistake. The question at every stage should also be, "How will this look in the record on appeal?"

Two threshold questions apply in every case:

First, can I appeal? The basic determinant is, is the action final? The appellate courts do not want cases to be like yo-yos, going up and down between the appellate and trial courts. They thus impose a finality requirement before cases may be appealed. There is one category of exceptions: If a ruling affects a substantial right, it can be appealed immediately notwithstanding lack of finality. The lawyer must consult both the appellate rules and the large body of case law in determining whether a substantial right is implicated.

Second, should I appeal? Former Supreme Court of North Carolina Justice Harry Martin, my former colleague in the judiciary, says most appeals are taken in the agony of defeat and perfected out of pride. Although the client makes the ultimate decision, the lawyer performs an important counseling function. Clients need to know they are entitled only to a fair trial, not a perfect one. The basic test is whether it is likely that the trial would have come out differently but for the alleged...