[ News Article ]
Appeals for More Appellate Lawyers Being Answered
By Gina Passarella
July 10, 2006
The Legal Intelligencer
A demand from judges and clients for skilled appellate attorneys is starting to take hold on Pittsburgh and Philadelphia law firms who in turn are creating with increased frequency specialized appellate practices.
In the past three months alone, two firms in Pittsburgh named former judges to head their appellate practices. Former Commonwealth Court Judge Robert Byer joined Duane Morris in Pittsburgh and Philadelphia, and former Superior Court Judge Robert A. Graci was chosen to lead the group for Eckert Seamans Cherin & Mellott in Pittsburgh.
Byer said appellate practice groups started on the West Coast in large firms that represented clients in the high-tech industry. He said California was one of the first states to offer a state-recognized appellate certification program.
Graci, who is also admitted to the Florida bar, said that state has had a certification program for years.
"I think Pennsylvania is somewhat behind the curve, but we're catching up," he said. "I have long argued that it's a specialty unto itself."
If someone needed a commercial litigator, she wouldn't ask for a litigator, he said, so why not put appellate practice into its own group.
The local legal communities have begun a little restructuring when it comes to the practice, and Byer attributes it to two things: judges and clients.
According to Byer, several judges have been speaking out about the need for improved appellate advocacy, and clients are becoming more and more aware that there are attorneys who specialize in the area.
The increase in government lawyers joining the private practice ranks also has had an effect, Byer said, because the government has always had a clear division between trial and appellate work.
Byer pointed out that not every trial lawyer can make the transition into appellate work because of the difference in skill sets. He said there is a difference in persuading the layperson of a jury as a trial lawyer versus crafting an argument that an appellate judge would appreciate.
"I certainly think it's a good thing from an appellate judge's perspective," Pennsylvania Superior Court President Judge Kate Ford Elliott said with regard to firms starting appellate practices.
Years ago, firms would usually send their most valued, respected partner to handle appellate work, she said. That had fallen to the wayside until firms recently began to return to the practice of sending experienced appellate attorneys to handle appeals.
"I'm pleased to see it happening again," Ford Elliott said. "Appellate practice and procedure is a very specialized area."
Ford Elliott said that attorneys who commonly handle appellate work are looked at as slightly more credible in the eyes of the court. That is not to say that their arguments carry more weight, she said, but the court can take comfort in knowing that it won't be bogged down in procedural errors.
"As appellate courts are becoming busier, more and more attention is being focused on following procedural rules," Byer said.
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Some...clients are asking appellate attorneys to sit in on trials or handle some of the trial briefings...
Byer said that in some cases the cost is worth it, and in others there is no cost difference to add an appellate lawyer if the work is split up efficiently.
Howard J. Bashman, a solo appellate practitioner and contributor to The Legal, said that very few cases warrant having an appellate attorney sit through the trial.
"Competent trial lawyers ought to know how to preserve objections to mistakes," he said. "Most cases would probably not justify high-priced appellate lawyers sitting in at trial."
Appellate lawyers can be brought in, he said, to handle trial issues such as complicated briefings or post-trial motions.
While trial attorneys have the potential to transition into the appellate arena, Byer said it is often difficult to do because of the differing arguments that appellate judges look for as opposed to trial judges.
According to Ford Elliot, trial attorneys tend to think that every issue they faced at trial needs to be raised on appeal.
Bashman said that appellate lawyers could better understand what an appellate judge would appreciate because the appellate lawyer too is just initiating himself to the case without having sat at trial. The appellate lawyers, he said, can offer the same brief summary of important issues to the judge that helped them understand the case.
An analytical mind and excellent writing skills are what makes for the best appellate lawyer, Bashman said.
James C. Sargent Jr. of Lamb McErlane in West Chester was recently appointed a co-chairman of the Pennsylvania Bar Association's appellate advocacy committee. He said that he saw his former colleague, U.S. Supreme Court Justice David Souter, a few months ago and was surprised to hear his thoughts on appellate law.
Sargent said that Souter told him "?the quality of appellate practice is not what it could be.'"
In his role on the committee, Sargent said he plans on working with other local bar leaders of appellate advocacy to educate attorneys on appellate rules and introduce them to the judiciary.
"I think we as appellate practitioners and the judiciary are in a partnership," he said.
According to Sargent, it is important in appellate law more than some others areas for the opposing sides to work together in terms of following and explaining procedural rules.
Bashman said that big firms can set up as many appellate groups as they want, but the ability to market an appellate attorney for both referrals and internally is not easy.
He said the culture has traditionally been that a litigator should be able to handle the case from start to finish.
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"The more that clients realize that appellate lawyers are useful, the better it is for everybody that does it," Bashman said.
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This article originally appeared in The Legal Intelligencer and is republished here with permission from law.com.