Section 1.24 Making a Prognosis

• Library: App Ct Prac 2015 Supp

4. (§1.24) Making a Prognosis

One of the highest functional skills of an attorney is predicting what the appropriate appellate court would hold as to the facts of a particular situation. Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (1960). That holding is the law of the case. The prediction allows counsel to advise the client what to do. In particular, the prediction may be needed to advise the potential litigant to proceed with a suit or with a defense. One of the difficulties of making the prediction is the inherent uncertainty that the evidence at trial will develop as described by the client. Will the witness be found? Appear? Testify as stated? Be credible? Withstand cross-examination?

On appeal, those doubts will have been resolved, even if not necessarily to counsel’s satisfaction. The facts are either on the record or not. The jury has believed one version or not. In that sense, making the prediction at this stage is done with more confidence.

At the core of evaluating a case for appeal is the exercise of this higher functional skill. Counsel predicts whether the appeal will win. Further, counsel predicts what disposition the...