Defense Digest

What Clients and Trial Counsel Should Know About The Effective Use Of Appellate Counsel

This article builds on that message because avoiding those procedural dangers is but one illustration of the many ways in which defense clients and trial attorneys secure significant benefits by engaging experienced appellate counsel in all stages of their cases, before, during, and after trial.

Credibility With The Courts

When defense clients seek to engage trial counsel, they look for attorneys who are not only experienced with the ins and outs of trial practice, but who also command the respect of trial judges. That respect is earned largely through frequent interactions with the judges. With that respect comes credibility. Credibility prompts judges to listen with an open mind and to treat the attorney’s position fairly and, thus, enhances the client’s case.

Engaging experienced appellate counsel in the prosecution and the defense of post-trial motions and appeals secures a comparable measure of credibility from the appellate courts. Successful appellate counsel command the respect of appellate judges, earn credibility, and, thus, enhance the acceptability of their clients’ cases.

Once, in the early stage of my career as an appellate attorney, I had to argue five cases before two different three-judge panels in separate courtrooms. By coincidence, one of the judges on my first panel was to sit as a substitute for a recused judge on the second panel. As I walked from one courtroom to the other, that judge caught up with me and remarked, "You know, Mr. Craven, you have appeared quite often before our court, but you really do not have to appeal every one of your cases." That statement, delivered tongue-in-cheek and in the judge’s caring-uncle style, allowed me to explain that my role was as appellate counsel in cases tried by other attorneys and that I defended appeals in addition to prosecuting them. "Oh, then," the judge remarked with a warm smile, "you’re like one of us!"

Since that time, my colleagues in our Post-Trial and Appellate Advocacy Practice Group and I have opened our appellate oral argument presentations by introducing ourselves as appellate counsel for our clients, and we have been well received as such by the appellate courts.

Credibility With Opponents

Engaging experienced appellate counsel in the prosecution and the defense of post-trial motions and appeals delivers an unmistakable message to the other side: the client is serious about this case. Opponents who do not themselves engage appellate counsel will be out-gunned and left to the perils outlined in Audrey Copeland’s article. Their cases will have less punch and worse credibility.

Defense clients and trial counsel should realize that the plaintiff’s bar itself has and uses dedicated appellate attorneys. One of the judicial members of the Pennsylvania Bar Association’s Post-Trial and Appellate Practice Committee, which I co-chair, recently underscored that point when the judge provided me with what she described as a very interesting article. The article was titled "Do-It-Yourself Brain Surgery: Or Why You May Need An Appellate Specialist," and it had been published in the September 1996 edition of Trial, the journal of the National Association of Trial Lawyers of America. As the title of the article suggests, its message was that it makes great sense for the plaintiff’s bar to use the services of appellate attorneys.

If the plaintiff’s bar uses appellate attorneys, should not defense clients and trial counsel do likewise?

Efficiencies, Depth, And Effectiveness

Appellate counsel provide clients and trial counsel with valuable services in all stages of their cases - before, during and after trial.

Entrusting the prosecution and the defense of post-trial motions and appeals to experienced appellate counsel not only enhances the chances of success for the case, but it provides tremendous efficiencies to clients by allowing clients to secure top-notch representation on both levels of the judicial system and by freeing their trial attorneys to pursue what they do best.

In addition, experienced appellate attorneys can work closely with clients and trial counsel to augment the depth and effectiveness of pre-trial and trial teams. In that support role, skilled appellate attorneys employ the unique insights gained from their interactions with the appellate courts to support trial counsel in the development and prosecution of dispositive pre-trial motions, in the strategic legal research and analysis of complex and first-impression issues, and in the development of effective trial strategies and tactics.

Find Out More

You can check out what my colleagues and I do and how we do it by visiting our web site at: http://www.marshalldennehey.com. Thank you for reading this article and for your interest in effective post-trial and appellate practice.

*Chuck is a shareholder in our Philadelphia, PA office. He can be reached at (215) 575-2626 or ccraven@mdwcg.com.