Section 1.43 The Case for New Counsel on Appeal

• Library: App Ct Prac 2015 Supp

B. (§1.43) The Case for New Counsel on Appeal

The argument in favor of new counsel on appeal can be plainly stated: The appellate attorney can do a better job because he or she is a specialist. The appellate attorney has more experience at this task. The appellate attorney knows:

the judges of the appellate courts; what those courts are looking for; how to write a brief well; how to make the most of the opportunity for oral argument; and how to do it efficiently and quickly.

The arguments for new counsel on appeal are parallel to those for a general practitioner referring trial work to an experienced lawyer or a trial lawyer referring tax work to an experienced tax lawyer. No one can do everything well. A general practitioner would not hesitate to refer out an admiralty case or a copyright case. Many lawyers today are either bringing in appellate attorneys to assist them on appeal, or they are directly referring the client to the appellate lawyer.

All large firms are departmentalized. Most large firms have appellate specialists. The wisdom of using these specialists is not debated. These lawyers are experts in a technique, in a process, and in a special court. The task they undertake and the audience they address are different from others.

Most large United States Attorney’s offices have appellate...