FAQs for Litigants
Is an appeal a fresh start for the whole case?
No. The general rule is that if an issue is not raised or an argument is not made before the trial court, it is waived, and the appellate court cannot review it. This is called the doctrine of preservation. The legal issues and facts must be explored in the motion papers or trial before there is an appeal.
I have an attorney. Why do I need an appellate attorney?
It depends on the importance of the case to you. The attorney you have is probably an excellent attorney who can handle all aspects of discovery and motions. However, if you think there will be an appeal (either by you or the other side), an appellate attorney can add value to your position. Your adversary and the court will see that you are willing to litigate the case as far as necessary.
When should an appellate attorney be brought into the case?
Once your case becomes out of the ordinary, the appellate process truly begins well before an appeal is taken. The best arguments must be preserved (raised before the trial court) to protect the right of appellate review.
Why hire an appellate attorney to handle appeals?
The appellate courts operate differently than the court in which you tried your case. You must convince at least three judges to agree with you. Appellate courts have a different perspective than trial courts. Trial courts focus on coming to a factual conclusion and applying the law when necessary. Appellate courts primarily focus on whether the trial court made legal errors. Preparing a convincing argument to an appellate court requires a different focus, and appellate attorneys may be better suited to do that.
Why hire an appellate attorney to make or oppose motions?
There is a short-term and long-term answer to this question. The long-term answer is the motion papers will become the record on appeal that the appellate court judges and law clerks will read. Reading the strongest arguments in a familiar way in the record helps reinforce the arguments raised in the appellate briefing.
The short-term answer is taking the appellate writing approach to motions, increasing the odds of winning the motion. Trial courts face a tremendous volume of motions. Addressing the complex issues of the case in a direct way can be helpful to the court.
How can an appellate attorney assist with mediation or settlement?
Many levers can be pulled to secure the best settlement possible. Appellate counsel can objectively analyze the case’s liability strengths, sustainable value, coverage implications, and loss transfer.