By Michael Petro, originally published in Buffalo Business First on February 27, 2017.
Appeals: Some attorneys see case through, others make referrals
SPECIAL REPORT: Appellate Practice
The practice of law is more specialized than it was a few decades ago. Most attorneys have a focus, and Erin McCampbell’s is appellate litigation.
An attorney at Lipsitz Green Scime Cambria, she said if the firm didn’t have a litigation department and there was a trial matter before her, she would enlist the help of someone elsewhere with that skill set. The same goes for the appellate practice.
According to McCampbell, an appellate attorney looks at a case with a fresh set of eyes to figure out what could be used to have some pull in the court of next resort. Her efforts aim to garner the attention of the Appellate Court and have it focus on the matters most essential to her client’s case.
After serving as a law clerk to federal judges at the trial level and in the U.S. Court of Appeals for the Third Circuit, she now handles both criminal and civil appellate work in state and federal courts. She has submitted briefs all the way up to the state’s highest court, the Court of Appeals, as well as U.S. Supreme Court.
“It never hurts to have another attorney’s or person’s opinion on where things went wrong (at the trial level). Sometimes it’s blatantly obvious and other times it is not,” she said. “In a trial court, there may have been 20 decisions by a trial judge and maybe the trial attorney thinks a lot of them are wrong. And they may have been, but as an appellate lawyer you have to put that aside and figure out what are the two, three or four issues that are best suitable for a challenge.”
It can be easier for attorneys to specialize in the appellate practice when they are part of a larger firm that provides them with administrative and financial support. It’s both a labor-intensive and detailoriented discipline. Understandably, many just don’t have time to do the necessary reading of transcripts, conducting research and careful crafting of documents integral to an appellate case.
Appellate work is increasingly recognized as not just an extension of trial practice, according to Vincent Buzard of Harris Beach. He started one of the first appellate civil practices in Western New York and said he realized right away the significant differences between this and trial work.
He has lectured on appellate law, helped author the book “New York Appellate Practice” published by LexisNexis and does pro bono criminal appellate work.
“Just because a person tries the case doesn’t make them the best person to analyze it further and do the brief, and I think that is being recognized around the country, including in New York,” Buzard said. “What happens is that in-house lawyers and referring lawyers from other states, like Texas and California where it is recognized more as a separate area, want to know if you have an appellate practice group and whether you have someone who does primarily appeals.”
Having argued appeals since the early 1970s, he said it’s necessary to practice in this area exclusively because the brief writing is so time consuming and preparing for oral argument can be intense.
He once represented the Buffalo Fiscal Stability Authority when wages were frozen and many of the unions in Buffalo brought lawsuits. He defended the wage freezes in 10 cases in state and federal courts. He also handles trusts and estates and last year won a major case for a bank. He also has a product liability case pending in the state Court of Appeals.
Said Buzard: “The part I enjoy the most is sitting there trying to figure out and analyze how to win the case. It’s hard to do that if you’re busy with depositions, discovery orders and getting ready for trial.”
Still, he said some trial lawyers try to hang on to their cases, to their detriment. One role of an appellate lawyer is to refocus the case and identify key issues that may provide the best chance of winning. According to Buzard, the argument made at the trial level may not be the right one for an appeal.
“Often, lawyers who come to me with appeals, if they lost they want to keep arguing the same argument rather than find a new winning argument,” he said. “On the other side of the coin, lawyers who won below and shouldn’t have may have a hard time holding on, but they don’t believe it because they won.”
According to Craig Leslie, who heads the appellate practice group at Phillips Lytle, it is important for trial attorneys and their clients to recognize the changing playing field when a case reaches appeal. During a trial, the audience consists of the potential jury and the judge, with whom the attorneys resolve issues through motion practice. It’s less about making law and more about finding a practical way to get from point A to B, Leslie said.
In the Appellate Division, an attorney must find the right way to explain to the court not only why he or she is right about the law, but why as a matter of policy the court should shape the law in a certain fashion to fix a prior decision or by considering the impact a decision will have on future cases.
As a former English major admitted to practice law in the early 1990s, Ann Campbell of The Tarantino Law Firm gravitated toward writing and researching — an ideal fit for appellate work. While her work now encompasses general liability defense, she still partakes in appellate work via referrals from other firms and some in-house cases.
“While the trial lawyers are working up the facts of the case to try to present a compelling story for the jury, we’re looking at it as a panel of five or so judges who will look at the case from a legal point of view,” Campbell said. “So we’re kind of looking at it maybe a little bit more dispassionately than a trial lawyer might.”
Sarah Rera is a personal injury and business trial attorney, but she’s also the go-to person for appellate work at Gross Shuman Brizdle & Gilfillan. In her former position as an insurance defense litigator, she handled most of the appellate matters and found that there can be advantages to doing both.
“You don’t always have a lot of attorneys who do the trial work and appellate work because they really are very different,” Rera said. “It’s good that I do both because I know what I can do as a trial attorney to make the appeal go more smoothly.”
Even while on trial, it is important for an attorney to have the appellate record in the back of his or her mind, according to Rera. If an objection isn’t made when it should be and there is testimony or a piece of evidence that is allowed, it can have an impact on the appeal. It’s vital that a trial lawyer be aware of what is in the record if it goes to appeal, she said.
“If you don’t preserve and protect your record, you could be out of luck once you get up to the Appellate Division,” Rera said.
However, not all trial lawyers want to get into what can be a complicated and tedious appeals process, Rera said. And when she needs a fresh set of eyes on an appeals case, she sometimes will turn to someone at her own firm.
“If you’ve been living with a case for sometimes five or six years, there are times when you can’t see the forest through the trees,” she said.
In high-stakes cases, Leslie of Phillips Lytle said the firm will sometimes seek outside appellate counsel. That can be useful because appellate counsel can help shape the proof and preserve issues for the appeal while determining the most important arguments to present.
“No matter how right I think I was, sometimes a certain argument is not going to win the day for my client on the appeal,” he said. “What I have to focus in on are the most important issues and cut through all of the rest.”
With reduced caseloads at the state’s Court of Appeals and U.S. Supreme Court, Leslie said getting it right at the Appellate Division has become increasingly important. Most times the attorney gets one shot after the trial level, he said.
“The odds of you going above the first level of appellate review are stacked against you these days, unless it is something that is so novel, unique and of wide-reaching implications,” he said.
An appellate-focused attorney such as Buzard can be brought in to work on a motion for summary judgment. Other times, his services are needed to simply review or advise on briefs and help an attorney prepare for oral argument.
McCampbell said the Buffalo market has been receptive to referring cases on appeal to other lawyers or bringing in someone to assist. The trial attorney can be useful in providing an overview of the flaws of the case or where a judge may have misunderstood something while McCampbell reviews the transcript. Since appellate division courts can get thousands of appeals annually, McCampbell makes every attempt to have her case stand out.
“I want to get the trial lawyer’s perspective, but you also have to set that aside and look at it for what it is and whittle down the arguments to only the few most important,” said McCampbell.
She may even ask the client about his or her theory of why the decision came about the way it did.
Appeals can be costly, according to Magavern Magavern Grimm counsel Sharon Gerstman. And that has affected the process of whether to take an appeal or if corners must be cut during an appeal. She won’t take an appeal unless the client knows there is going to be a disbursement for an appellate services provider. She doesn’t have the time to make sure everything in the brief complies with court rules.
“I like to sleep at night so I want to make sure that everything is being handled correctly,” said Gerstman, president-elect of the state Bar Association. “I think that’s not unusual of people who do appellate work.”
Campbell said that before accepting a case, she tries to determine the chance of success on appeal. And since clients have grown more savvy, attorneys are increasingly having serious discussions with them about whether to take on an appeal.
“We as attorneys get very passionate about the case and we believe we have a good position, so a lot of it is discussion about balancing those strong feelings versus what does the law say, how is an appellate court going to look at this and then having that kind of discussion with the (referring) lawyer and client,” she said.