Should You Use Trial Or Appellate Counsel?
Which person is best-suited to handle an appeal, the original trial attorney or a specially-retained appellate attorney? Arguments can certainly be made for either.
The obvious benefit for the trial attorney handling the appeal is his/her intimate familiarity with the client and the facts of the case. having likely been involved with the case for many months, if not years, this person is most likely to know the facts better than anyone besides the client. This person will also have a good understanding regarding how those facts intertwine with the prevailing law.
However, there is something to be said about having an appellate attorney handle the case. After all, this person is intimately familiar with the procedural nuances of appellate advocacy and is more likely to develop a better brief and present an oral argument in the style and fashion that the bench desires. Indeed, this attorney likely knows the judges and their idiosyncrasies very well given his/her repeated appearances before the court. This familiarity may help the attorney get the benefit of the doubt in close-call cases. Credibility before the court can be very persuasive.
During my days practicing before the court, both the defense firm I worked for and also my sole practice I started shortly thereafter utilized the same attorney for both trial and appellate work. While I am not sure why the defense firm decided this was the best route, I did it primarily because I tended to believe I would be competent enough to handle the appeals work as well. Not wanting to pay or share proceeds with an appellate attorney probably played a role in my decision-making as well. I am somewhat of a cheapskate.
Overtime, I have started to change my thinking, and after I started teaching appellate advocacy I developed a greater appreciation for the specialization needed to be effective at appellate advocacy. While a trial attorney certainly “could” handle the appeal, a competent appellate attorney may be a better option. Not only does it free up the trial attorney to work on other matters, it also alleviates the urge to simple reformat the motion(s) filed before the trial court and submit a substantially similar document on appeal (of course, renaming it a “brief”). Also, an appellate attorney can look at the facts with fresh eyes and may see a flawed approach or develop an alternative strategy to make the argument more persuasive.
To see more analysis on the topic, check out the California Blog of Appeal.