By Michael Canfield, originally published in Buffalo Law Journal, Buffalo Business First on Feb 12, 2018, 6:00am EST.
BLJ: Appellate Lawyers Eye the Big Picture
SPECIAL REPORT: Appellate Practice
The life of an appellate lawyer is different from their trial lawyer peers, who must focus on the daily considerations of a case and trial.
Appellate lawyers take a look at the big picture of a case and work to be as concise and specific as possible, often with complicated matters that need to be boiled down.
“What you’re really doing as an appellate lawyer is distilling a case down to the essential issues that the appellate court needs to address,” said Craig Leslie, a partner at Phillips Lytle in Buffalo. “You’re figuring out how to present those issues to the appellate court in a way that is going to get the best possible result for your client.”
Appellate lawyers ensure that issues have been properly raised and supported in the record, he said, “then they have to find a way to persuade the appellate court to decide the issue in the favor of your client.”
Appellate lawyers must understand the scope of the appellate courts and their jurisdictions. They also must understand the trial court process in order to focus on issues raised there for presentation in appellate court.
“You have to have a foot in both areas,” Leslie said. “Ultimately your focus is on getting the case to that appellate court consistent with its rules, its expectations and its scope of review.”
Raising an issue that the appellate court can’t review because it wasn’t properly handled in a lower court doesn’t do any good, he said. Neither does raising an issue abut which the courts’ scope of review is limited.
“You’re unlikely to succeed,” he said. “You have to figure out what is the issue that they can actually review, what can they actually do and how can I best present it to them to get the result I want for my client.”
The “die is already cast” in terms of the case record, he said, limiting what an appellate lawyer can do.
“You’re limited to whatever the trial court record is, typically with very few exceptions,” he said.
Once the appellate lawyer determines what issues can be raised in appellate court, the argument is focused on those issues.
In high-stakes or high-profile cases, the trial lawyers will look to involve an appellate attorney to help identify issues that may be used in an appeal, and to make sure that they are preserved at the trial level so they’re not lost between the trial and the appeal.
“In an ideal universe, assuming the case warrants it, having the appellate lawyer involved at the trial level is a useful check to make sure that the issues are preserved and can be presented to the appellate court after the trial is complete,” Leslie said.
There’s often a level of trust between the appellate court and law firms that regularly file appeals, he said.
“You understand what their expectations are, you understand what the bench is like,” he said. “Is it a hot bench, where there are going to be many questions? Is it a court where there are fewer questions? How does the court conduct its argument typically? Those all factor into how you present your argument. … You have to gain that level of comfort talking to judges that way and being able to present your case that way.”
Victoria Graffeo, a member at Harris Beach PLLC and leader in the Appellate Practice Group, said there’s considerable difference in how lawyers approach litigation for trial purposes as opposed to bringing a case to the appellate division.
“We feel it is important to have attorneys who are familiar with looking at the big picture of a case and be able to review the record and analyze the relevant precedent,” she said.
While trial lawyers typically examine the facts of a particular case, appellate lawyers tend to take a broader view, according to Graffeo.
“You’re dealing with the development of the law in New York, and the courts are going to be concerned at the appellate level with the ramifications of the case well beyond the dispute between the two parties involved in that particular litigation,” she said.
In terms of case briefs, appellate briefs are different from a memorandum of law submitted in lower courts, said Svetlana Ivy, a member at Harris Beach.
“At the trial court level, the brief may not even be the heart of your submission. At the appellate level, it is your entire submission,” she said. “ There’s no opportunity to supplement the record so the brief is critical.”
Ivy pointed to the “questions presented” section in appellate briefs that is often not in trial court briefs.
“That is something most attorneys don’t do on a regular basis. They don’t draft questions presented,” she said. “It’s a skill that appellate attorneys have honed with experience.”
In an appellate brief, the statement of facts is concise.
“That is not always an easy task, especially in cases with substantial records,” Ivy said. “It can be particularly difficult to put together a concise statement of facts with everything the appellate court needs to know.”
Graffeo, who spent 14 years as a judge for the New York Court of Appeals, said appellate lawyers are adept at formulating the issues for appellate court.
“I can’t stress enough the need to simplify the issues,” she said. “No brief should have six, seven, eight issues that you’re presenting to the appellate court.”
Lawyers breaking into appellate practice should sharpen their writing skills, she added. It’s important to be clear, concise and direct. Having a more experienced attorney read the work can be beneficial, too.
“Keep trying to improve your writing skills,” she said.
Anything a lawyer has written to be sent to the court should be edited multiple times, she said.
All the appellate courts stream their arguments online, according to Graffeo. And that’s a prime opportunity to learn from others.
“Just like every trial lawyer has his or her own style in the courtroom, every appellate lawyer has their own style,” she said. “It helps to be able to see and get familiar with how the court deals with the cases before it.”
Judges like to pick up a brief and in the first 10 pages know what the case is about and what the attorney proposes, she said.
“That may sound simple, but sometimes it takes a lot of work to figure out exactly what the court is being asked to do,” she said. According to Ivy, one of the biggest mistakes a lawyer can make is essentially reusing the trial brief.
“The big problem I see is that you have a statement of fact that is way too long and you don’t get to what the issue in the case is until very late in the brief,” she said.
While an appellate attorney will handle the appeal, he or she works as part of the team with trial lawyers.
“I usually start with talking to the trial attorney and, if there were memoranda, reading those,” Ivy said. “Those are usually good starting points.”