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The Difference Between Trial and Appellate Practice

By Craig LaChance

Suppose you have a case that went to trial, and you are facing an appeal. Either you lost and want to appeal the decision, or you won, but your opponent has vowed to appeal. In any event, the case is going to the next level. Should your trial lawyer handle the appeal? After all, your trial lawyer has worked on the case for months, perhaps years, and will know the facts and law intimately. In fact, your trial lawyer probably crafted many of the arguments that may be raised on appeal. What is more, having gone to battle with your trial counsel, you’re comfortable with them and trust their judgment. If your trial counsel has appellate experience, then having them handle the appeal may be advisable.[1]

But if they don’t do appeals, you want to consider counsel who specializes in them. Trial and appellate work are quite different. Being a great trial lawyer does not make one a great appellate advocate. As federal appellate judge Ruggero J. Aldisert notes, a successful trial lawyer is a salesperson whose objective is to persuade a panel of lay jurors that their client’s witnesses are credible and that the facts favor their side.[2] Trial advocacy typically involves more than legal argument; it often involves emotional appeals to create a sense of righteousness. Much trial advocacy is verbal. Thus, argument is more fluid, organic, and less focused on analysis of legal concepts.
Always Be Closing
“The only thing you got in this world is what you can sell.” Arthur Miller, Death of a Salesman.

An appellate lawyer, on the other hand, “is still a salesperson, but the lawyer carries a different sample case.”[3] Instead of juries, the audience in an appeal is a panel of professional judges. Also, while trial argument is primarily verbal, appellate advocacy is generally written. Where a trial brief is typically less than 10 pages, appellate briefs often run to 30 pages or more. As Judge Aldisert notes, appellate advocacy is really a dialogue between professional writers (appellate attorneys) and professional readers (judges). To be sure, appellate lawyers present oral arguments, but these arguments are extremely circumscribed, often only 15 to 20 minutes; compare this with the days or even weeks a trial lawyer gets to make their case. Additionally, appellate work focuses on the law rather than facts. This results in often abstract arguments concerning policy, history, legislative intent and the analysis of legal concepts. Good appellate attorneys are often reflective, analytical and introverted—traits that are not often associated with the fireworks of a trial courtroom.

This is not to say that trial lawyers are not thoughtful or that appellate attorneys are shut-ins. Nor is it that trial lawyers cannot be successful appellate attorneys, or vice versa. Indeed, there is quite a bit of overlap in trial and appellate skills. The point is that the differences between trial and appellate practice are important and are a factor in successful appeals.

 


Footnotes

[1]  See Michael J. Meehan, “Appellate Advocacy,” in Arizona Appellate Handbook, vol. 1, §2.3, 2-4 (4th ed. 2010) (“If at all possible, every appeal should be done by a lawyer with appellate practice experience”).

[2]  Ruggero J. Aldisert, Winning on Appeal, 4 (NITA 1996).

[3]  Id. at 5.

Robert Greer

Humility and the Detailed Understatement – The Importance of the Story

By Robert L. Greer


Poised somewhere between sinful vanity and self-destructive submissiveness is a golden mean of self-esteem appropriate to the human condition.  – Stanford Lyman[1]


Some successful trial lawyers dominate a courtroom. Their intellect shines, their command of the facts are unparalleled, their language soars. Their physical posture is intimidating; their glare or bemusement or glow reflects whether a jury should trust a witness or even consider an exhibit. Their outrage or reason or compassion can be summoned to their faces and voices at will.

Such gifted advocates are rare. Those skills are as much natural endowments as they are learned. In fact, without those native gifts, similar efforts at domination fall flat. They are too forced, too unnatural for most.

What can be cultivated, however, is something that we trial lawyers normally suppress. That is an admission that we don’t know everything, that we cannot hope to understand it all, that we are just doing our best to represent our client with such modest talents as we have, gifts perhaps no greater than those of the jurors. We can, in short, infuse our presentation with humility. Not forced nor feigned, but real humility.

That concept is most often written about in theological terms, defined usually in juxtaposition to the sin of pride. And, while helpful to our understanding, the humility associated with monastic orders is not to be confused with the humility which marks an effective trial lawyer. C.S. Lewis put it in understandable terms:

Don’t imagine that if you meet a really humble man he will be what most people call “humble” nowadays: he won’t be a sort of greasy, smarmy person, who’s always telling you that, of course, he’s nobody. Probably all you’ll think about him is that he seemed a cheerful, intelligent chap who took a real interest in what you said to him. If you do dislike him, it will be because you feel a bit envious of anyone who seems to enjoy life so easily. He won’t be thinking about himself at all.[2]

Humility of this sort leaves us free to admit that we’re anxious of the task ahead. To represent another person whose future turns upon the judgment of a handful of strangers on the jury is a humbling thing. But necessarily in representing another in a forum for which we have been well trained, we assume power denied to the litigant. He does not know the rules of procedure or of evidence. He does not know how to present facts in a compelling and credible manner. He does not know how to deal with contrary evidence or adverse rulings. We do. With that knowledge comes power. That power, coupled with the natural competition born of the adversarial system, may cause us to slip easily over the fine line into arrogance. But the power to represent another whose future or fortune turns upon our representation cannot be treated lightly or arrogantly. It compels humility.

Telling a jury how we feel – probably the same thing they would feel if they were in our shoes – is telling the truth. It is an admission of our humanity and shortens the distance between ourselves ant the trier of fact. It is a leveler of social strata. That truth permeates the evidence.

But truth is best told as a story. We learn from stories. Fables, allegories, parables, poems, lyrics, plays, movies all are a means of conveying truth. The detail in the story conveys both the genuineness of the events and the deeper meaning beyond the events. A story should move the hearer to feel something, to do something, to bring the story to conclusion and to bring it to conclusion in a way that is consistent with the deeper truths the story is meant to convey.

It is from the details that not only does the story ring true, but the credibility of the story teller is enhanced. Consider the following story, part of an opening statement to a jury:[3]

I am grateful to finally be here in this courtroom. It has taken a long time and has involved a lot of work. I’m frightened by the prospect of having you consider what I have to say; fearful about how I can best help you understand what Jim and Carol Jones have experienced and have trusted me to show how you can make things right.

First, let me tell you about their home. It is a modest, three bedroom house in an old neighborhood in Mesa Arizona. It was built in the late 50’s and is a short distance from an elementary school. The yard is neat with old trees standing at its edge. Stretching diagonally across the lawn is a worn path from the front door in the direction of the grade school a couple of blocks away. Enter the home and you see to the left a wall of photographs, family picture mostly. By the clothes you can tell some photos go back three or four generations. Some people are aging, some are young people mugging for the camera; most are family group shots. In the middle of the photos is a slightly larger painting of a boy who appears about nine or ten years of age. Next to the painting is a small school picture showing the same subject, in the same clothes, in the same pose. Past the wall is a hallway to the left. As you turn you see a door on the right. At that door you look in the room. There is poster of Steve Nash and the Phoenix Suns on the wall, a framed drawing of Christ on the opposite wall. Soccer and basketball trophies are on a shelf above a neatly made bed with an aging “Toy Story” bed spread. There are shelves with books of stories for early readers. A baseball and bat is on top of the book case. In the closet you see the blue and gold of a cub scout uniform, a rugby shirt, an Arizona Cardinals jacket and unmatched pants. On the floor of the closet is a clear plastic bin with Legos in various states of assembly.

It is obviously a boy’s room. But strangely there is no clutter. No clothes on the floor, no books strewn about, no toys in sight. It is clean, almost sterile. But it is empty. You can almost feel the emptiness. It is empty and it is quiet.

It is empty and silent and clean because that man, Sam Everett, sitting at the table across from us, mixed gasoline with alcohol and drove his truck into the little boy who lived there; the boy who left the safe path from his home, crossed the street at the same marked crosswalk that he always did on his way to school and was sent flying more than fifty feet. His skull was fractured at the parietal bone; his lung was punctured by his fourth rib; his spleen was torn and bleeding; his right femur snapped. He lived long enough for his mother to reach him before the ambulance arrived. But the defendant was not even aware that he died. He was three sheets to the wind at the steering wheel of his truck.

You see, Mr. Everett had been at a company picnic, one of those large events at the park, at which his employer sponsored team building exercises, provided catered food, music, mingling between executives and line workers, good times and an open bar – an open bar attended by a single young woman who had volunteered to be there; who had never done it before, and, who never drank herself. Over a period of four hours, the outgoing and fun and charming and flirtatious Sam Everett consumed enough from the bar so that his blood alcohol registered twice the legal limit when his blood was drawn two hours after he wobbled away from the open bar and stumbled into his truck.

So what will a jury feel with that story? Does it ring true? How will they now view the evidence? Will they feel the loss? Will the feel any outrage? What will they want to do?

Now we could convey the same facts in simple declarative statements: “This was a close and religious family. The parents were involved with their children. They miss their son. The defendant was driving drunk. The employer was negligent in serving drinks.” Those statements are true. But they do not convey that truth as much as does the detailed story. They do not impel a jury to feel and want to do something about it.

Rudy Baylor, John Grisham’s hero in “The Rainmaker,” disappears behind his client’s dead son in his closing argument in an insurance bad faith case. The son’s videotaped deposition is first played to the jury in which the young man talks bout the hope and survival offered by a bone marrow transplant, denied by the insurer. The actions of the defendant health insurer are detailed. Mr. Baylor then concludes simply: “I’m askin’ you, the jury, to do what is right, in your heart.”
No demands, no soaring oratory, no brilliant analogies, just a simple heart felt and genuine, even humble, request for justice.


Footnotes

[1] The Seven Deadly Sins, Society and Evil [Rowman & Littlefield, 1989] 135.

[2] C.S. Lewis, Mere Christianity [Macmillan, 1960], 99.

[3] The names and facts are fictitious and do not represent any real people. Any similarities to real people are coincidental.