Section 1.39 Loyalty

• Library: App Ct Prac 2015 Supp

b. (§1.39) Loyalty

In §1.10 above, it was observed that most briefs are apparently written for the purpose of convincing the client that this case was a good one and that it was ably presented at trial. This is the appellate process as a catharsis. Appellate courts are being used in professional self-defense. This is not good advocacy.

The sad truth may be that many lawyers handle their own appeals because they wish to make up for their loss at trial. They feel badly about losing. They suffer for their clients. Handling the appeal is a way to expiate the sense of failure and the sense of obligation. It is also a method of restoring the trial lawyer’s confidence.

Unfortunately, the result of these wishes is the typical brief, really addressed to the client. Expiation and restoration of confidence can be pleasant by-products of an appeal. But they are far afield of the critical functions of the appellate courts. These typical briefs are a strong argument for the involvement of an appellate attorney who does not have this emotional stake in the case. With many cases, a review by an objective specialist would persuade the client to accept defeat. The cursing of the judge and jury should be done at the tavern, not at the court of appeals.

In the...