By Anthony J. Vetrano
A lawyer who loses a trial is disheartened, tired and maybe even angry. That is not a condition conducive to mounting a successful appeal.
| Success on appeal necessitates a brief (written argument) that is clear and convincing. That's what I produce. |
In his book, Writing to Win, The Legal Writer, Steven Stark advises that the first way to improve an appellate brief is “to have a new lawyer come in at the appellate level” because “lawyers who do their own appeals are often wedded to their original theories and unable to notice the minor issues below that should become major ones above.”
In other words, when things go wrong at the trial level, what is needed at the appellate level is a fresh perspective.
The trial lawyer is well aware of the trial’s details, but that awareness gets in the way of the broader perspective necessary to identify what is determinative in an appeal. In his litigation column for the ABA Journal, Professor James W. McElhaney has called this broader perspective the “big idea.” He describes this as the “moral imperative,” “the wrong that cries out to be set right or that has to be prevented.” It is the big idea, McElhaney says, that “should drive everything you do.”
In what is perhaps the classic work on appeals, Effective Appellate Advocacy, Frederick Bernays Wiener writes along the same lines when he states that “it is the ability to discern weak points, and the willingness to discard weak points, that constitute the mark of a really able lawyer.” The trial lawyer, who knows all the problems with the trial court decision, will be inclined to point them out. But the problems can include weak points that, if argued, will dilute the stronger points. A lawyer uninvolved in the trial, and therefore unaffected by what occurred there, is more objective about the strength of arguments.
The tremendous volume of appeals being filed today means that what is more important than ever is the brief’s succinctness. Steven Stark notes how too many advocates treat the process of briefing as if they were waiters at a cocktail party: “They carry around a platter of hors d’oeuvres and ask judges if they’d like one. That’s not advocacy. The [advocate’s] job is to tell judges which one to select.” Of course, a trial lawyer wants to serve a number of hors d’oeuvres — or issues — because he or she believes they are all good and therefore “worth serving.” But a lawyer who had no stake in the success or failure of the trial lawyer’s “party” — or trial — can more easily see which hors d’oeuvres did not go over well.
The rules of appellate procedure themselves demonstrate why it is essential to stay away from details. For example, the rules provide that after appellant files the notice of appeal, the lower court may direct appellant to file a “concise” statement of the matters complained of. Pa. R. App. P. 1925(b). Further, in the appellate brief, the statement of questions involved must be in the “briefest and most general terms, without names, dates, amounts, or particulars of any kind.” Pa. R. App. P. 2116(a). And the brief’s summary of argument is to be “concise,” “succinct” and “should not exceed one page and should never exceed two pages.” Pa. R. App. P. 2118. The federal rule concerning the summary of argument is quite similar. Fed. R. App. P. 28(a)(8).
The trial lawyer, who has had to deal with so much, can overlook the fundamental problems with a trial court’s decision. The author is familiar with a case in which a trial lawyer assumed the appropriate standard of appellate review was whether the trial court had abused its discretion. But the trial lawyer missed the fact that jurisdiction of the defendant had not been established. That meant that the more favorable standard of review on appeal was the lack of evidentiary support in the record for the court’s (implied) finding of jurisdiction.
The trial lawyer may also believe that having tried the case obviates the need for a careful and thorough review of the record. In other words, the thinking could be that no one knows the record as well as the lawyer who tried the case. But “knowing” the case that was tried can be a problem when that is the case that was lost. A careful, thorough review of the record is the foundation of the appeal; everything about the appeal emanates from the record. And such a review will be more effective if done with the freshness and sensitivity of a lawyer who is new to the case.
Frederick Wiener has written that because an appellate court’s aim is “to do substantial justice,” the appellate court is “sensitive to the equities of the particular case.” A lawyer uninvolved in the trial has a similar mindset because that lawyer, like the appellate court, is learning about the case for the first time and the (appellate) lawyer’s objective is identifying and addressing the injustice that has occurred.
A persuasive brief requires much thought, drafting and redrafting. William Zinsser, in his book, On Writing Well, says quite simply that “writing is hard work.” And Frederick Wiener has opined that “effective brief-writing … is a process that entails … aquest for perfection.” But it is probably the rare trial lawyer who has the time for such a “quest.”
In addition, brief writing necessitates familiarity with the rules of appellate procedure. The Pennsylvania Rules of Appellate Procedure run over 100 pages, and the internal operating procedures of the Pennsylvania Supreme, Superior and Commonwealth courts add more. Almost another 150 pages are taken up by the Federal Rules of Appellate Procedure, the Local Rules of the 3rd U.S. Circuit Court of Appeals and the 3rd U.S. Circuit’s Internal Operating Procedures. A lawyer who does not normally handle appeals, and therefore has to review and study such rules before writing the appellate brief, may find this onerous.
Finally, all of the above considerations assume an appeal is justified. But such conclusion can be arrived at too quickly. The initiation of a lawsuit and then the trial of a case entail considerable investment. Hence, when a trial is lost, taking an appeal can be almost a natural impulse. Having a lawyer other than the trial lawyer review the merits of an appeal can check what may be a decision to “throw good money after bad.”
In conclusion, appeal is not simply another stage of litigation. It is a different arena, and one that probably cannot be assessed accurately without the participation of a lawyer uninvolved in the trial but experienced with the appellate process.
Bionote
Anthony J. Vetrano is a partner with Vetrano & Vetrano in King of Prussia. He handles appeals in a variety of cases, including employee benefits, family law and real estate.
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Anthony J. Vetrano
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455 South Gulph Road
King of Prussia, Pennsylvania 19406
Phone: 610-265-4441
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