NINE REASONS WHY APPELLATE PRACTICE

 IS BETTER THAN TRIAL PRACTICE

 

[Posted June 20, 2013] One of my favorite essays is Thomas Boswell’’s 1987 gem, ““Why Is Baseball So Much Better than Football?”” The title is usually misquoted as, ““99 Reasons Why Baseball Is Better than Football,”” and I decided to purloin that version for the topic of today’’s sermon. (By the way, many of Boswell’s Reasons are now dated, but many others –– including my favorite, #20 –– retain their compelling force.)

The genesis of this essay is a conversation that I had last autumn with one of my best pals in this profession. He’’s an excellent trial lawyer, and over dinner, I jokingly invited him to consider becoming an appellate lawyer instead. He protested that there were things about trial practice that he enjoyed, and that immediately brought to mind all the things about trial practice that I absolutely hated, thus driving me into the happy circumstance in which I now find myself. Here’’s a slightly edited version of my arguments in favor of the appellate sector:

1. Drafting expert-witness designations. Do you enjoy preparing these? No? Well, that’’s no surprise; virtually no one does. They’’re tedious, and if you make a single mistake in one of them, your crucial expert might be tossed, leaving you with no way to prove your case. Try explaining that to the client.

Appellate lawyers don’’t draft expert witness designations. That’’s because we don’’t use expert witnesses. Accordingly, there are no designations. It’’s just a non-factor.

2. Responding to John Crane motions. This is the evil step-sister of the first entry. The penalty for a John Crane violation is so severe (too severe, in my humble opinion; but I’’m not a trial lawyer) that lawyers are far too quick on the trigger with motions to exclude. Why not try? You might get a cheap win.

The problem, of course, is that John Crane, Inc. v. Jones isn’’t as broad as over-eager lawyers think it is. For the first couple of years after it came down, lawyers asserted in trial courts that every syllable of the expert’’s testimony must be included in the designation; any aspect of the testimony that wasn’’t in there would be excluded. Happily, the Supreme Court clarified the ruling in a 2011 decision, Condominium Services v. First Owners’ Ass’’n, stating that as long as the disclosure apprises the other party of the scope of the testimony and enables the opponent to prepare for trial, it’’s sufficient.

Now, do you think that every trial lawyer has received that message? Probably not; I still get the impression that filing a motion to exclude is the rule rather than the exception it should be. As noted above, the potential payoff is so great, trial lawyers figure they might as well give it a shot.

Appellate lawyers, of course, never have to respond to John Crane motions, for the same reason we don’’t have to prepare disclosure reports: There are no expert witnesses in appellate courts, so no expert ever gets excluded.

3. Receiving hearing notices returnable in 48 hours. Some trial courts have local rules that require a certain number of days of advance notice for a court hearing, but that rule isn’’t uniform. In addition, Rule 4:15(b) requires that you make a reasonable effort to work out a mutually convenient hearing date, but in my experience, that obligation often gets ignored. The result is, all too often, opening your mail on Wednesday to find that there’’s a hearing scheduled for Friday morning. Your opponent hand-delivered the notice to the clerk of court on time, but sent your copy by Fourth-Class Mail, Bulk Rate, and it took a couple days for it to make it the seven blocks from his office to yours.

Appellate lawyers never, ever have to deal with this. That’’s because, while we do have motions practice (see Rules 5:4 and 5A:2, plus FRAP 27), we don’’t have hearings on them. The Robes simply read the motions and any replies, and hand down a ruling.

4. Combative depositions. In fairness to my pal, he insisted that his depositions have never gotten nasty. I remember thinking to myself, That would make you a tad different from most trial lawyers, my brother. But I know lots of trial lawyers, and so I’’ve heard lots of stories. Those depositions can break down into legal posturing, name-calling, and even threats. You have one lawyer advising a deponent not to answer questions, and the other lawyer threatening a motion for sanctions.

You know this already, before I have to tell you: There are no depositions in appellate courts. We already have a fully developed record in front of us, so the transcript is a given. This is, in truth, one of the major advantages of appellate work over trial work:– depositions are such a flash-point for confrontation, they tend to give trial-lawyering a bad name.

5. Coordinating schedules for trial. Back in the medieval period, when I tried cases, I used to hate this part: The trial is set for Monday, and three of the witnesses want to be on call, instead of waiting around for hours in the courthouse. Being a good-natured sort, I always tried to accommodate them, especially where the witness was (1) a police officer who just got off work after the midnight shift, and was going straight home to bed after testifying; or (2) an expert who was charging my client a gazillion dollars an hour, portal-to-portal.

The trouble with this, as any experienced trial lawyer knows, is that the pace of trials is rarely, if ever, predictable with any degree of accuracy. You might tell a witness to be in court at 10:45, only to find out that you need her at 10:15. Or maybe the same witness gets there on time, but an unexpected delay postpones her testimony until after lunch. Now the witness is mad at you –– not because you caused it, but because you’’re the messenger.

The other problem comes from the other end: The witness isn’’t there when he’’s supposed to be. Things are actually much easier now than they used to be, back when I started trying cases and there were no cell phones. Now, if a witness isn’’t there when you need him, you can slip out in the hall, dial him up, and ask where the hell he is. (Back in the 1980s, all we could do was fume to ourselves.) The only safe way to avoid this problem is to insist — as I understand some risk-averse trial lawyers do — that each witness hang out at the courthouse until his or her testimony is required.

No appellate lawyer has ever had to deal with a missing or impatient witness, because we don’’t employ those, either. All the testimony is already in the record. All we have to do is master that record.

6. Trying to bond with seven perfect strangers. The people who will decide your client’’s fate are almost complete unknowns. Oh, you have a few basic ideas about them, based on the juror form and an all-too-brief voir dire process. But in truth, you’’re trying to develop instant rapport with people who know not the first thing about you except that you’’re a lawyer, and that’’s probably a mark against you in their minds.

So you make certain assumptions, based on tidbits of information and guesses based on human nature. That being said, it’’s never enough information. You never really know what makes a given juror tick, so it’’s seldom possible to craft your argument in such a way that you hone in on what this one really likes, or on what’’s particularly important to that one. And there’’s never enough time to develop true ethos –– trustworthiness based on who you are –– with seven strangers.

As I explained to my pal last year, the beauty of my practice is that I have the same seven jurors every time. How does that help me? Well, unlike your jurors, my jurors tell me what they like. In writing. And when there are nuances to what they like or dislike, they spell out those nuances in other writings. I get to read about which arguments reach them, and which ones are likely to fall on deaf ears.

What’’s more, it’’s possible to develop ethos with my jurors over time, by consistently filing the kind of briefs that they want to read (hint: short); by always citing the record faithfully and never shading the facts; by answering their questions honestly, even when the answer hurts your chances of success somewhat. Eventually, these jurors will come to recognize that an advocate’’s word can be trusted. Imagine trying to achieve that in a trial court with your seven jurors; there just isn’’t time.

Now imagine how effective an advocate you’’d be if your jurors felt that way about you. Picture a jury trial in which you knew all of the jurors in advance, and your opponent didn’’t know any of them. I’’m not saying that you’’re best buds with the seven; but you know who they are and what they like and dislike. They’’ve seen you often enough to know that you’’re honorable. Your opponent, in contrast, is a stranger.

Would you consider that that setup would give you an edge over your opponent in the upcoming trial? Of course it would; you’’ll have a much better idea of how to reach them, and they’’ll be more receptive, instead of resistant, to what you have to say. In a situation like the one above, the trial judge would strike any venireman who answered, “I know Mr. Johnson, and I trust him.” But on appeal, a good reputation isn’t a disqualifying factor.

This is the edge that experienced appellate advocates have over those who only dabble in appellate courts. It doesn’’t mean that we win every time, but that’’s the nature of the advantage.

7. Trying to figure out what your jurors are thinking. You’’re examining a crucial witness at trial, and out of the corner of your eye, you notice that a couple of jurors have troubled looks on their faces. What are they thinking? Are they distrustful of what your witness is saying? Bad news. Are they generating a sense of anger at how the Bad Guys have treated your client? Good news. Are they just hopelessly confused about what it is that you’’re trying to achieve with this witness?

Okay; that last part is your fault. But the problem is, the jury can’’t interrupt and say, ““I’’m sorry; I don’’t understand this aspect of your testimony/argument/etc. Could you explain it?”” Or, ““Gee, that testimony seems to contradict my life experiences; I’’m not sure that I’’m buying it.”” Not only do you not know when these potential disasters arise, you won’’t know their nature.

The appellate perspective is much easier to deal with. My seven jurors can and do interrupt me while I’’m speaking. You think that’’s rude? Not on your life. The last thing I want to do in the well of an appellate court is give a speech on Easter Island. I want to be interrupted, I’’m silently begging to be interrupted, so that one or more of the justices can say, ““Here’’s what troubles me about your position.”” That gives me a priceless opportunity to give the explanation to put her honor’’s mind at rest, given the answer I have for her concern. If you never know what the question is, you can’’t give the clinching answer. That’’s one of the biggest differences between trial advocacy and appellate advocacy. Trial lawyers have to fly blind; I get directions from the control tower on a regular basis.

8. Emergencies on the first day of your vacation. Every trial lawyer knows that a volcano can erupt in the case at pretty much any time, from the date you file suit until 21 days after entry of final judgment. As a general rule, those volcanoes have a tendency to erupt just as you’’re settling your toes into the sand on a tropical beach and reaching for your first Planter’’s Punch of the week.

Thinking back to the 1980s again, you’’d probably find out about this development when you got back to your cabana late in the day, and saw an urgent note to call your legal assistant, routed through the resort’’s front desk. You called the next morning to find out about something like a 48-hour hearing notice, which is now set for tomorrow, and no one else can handle it and the Bad Guy refuses to move it. (Nowadays, you get the word instantly, since your legal assistant knows that you can’’t be separated from your cell phone by more than four feet for more than fifteen minutes at a time.) This is a vacation?

Because of the nature of the practice, there are very seldom unforeseen emergencies in the appellate sector. I can assure you that, right now, my calendar has already been marked with every Supreme Court of Virginia session week and writ-panel date through the end of 2014. If I need to be away for a week, I can pick one, safe in the knowledge that I won’’t have to go to court. And while some appellate deadlines are short, none of them are shorter than a week, and even those can be spotted from a mile away, and planned for.

9. Stressful multi-week jury trials. Remember your last two-week ordeal? How much weight did you lose from the stress? I know, everyone wants to look slim; but trust me, losing weight by an extended period of stress is not the way to do it. Unfortunately, long jury trials are inherently stressful.

Do you know what I’’m doing sixty minutes after one of my cases is called? Why, I’’m in my Mustang, downshifting to pass some slowpoke on I-64 East. I’’m already headed home. Appeals in the Supreme Court and the Court of Appeals generally take thirty minutes, and after that, you’’re gone. No stress (and no weight loss; but you can’’t have everything).

* * *

So that’’s my sales pitch. If I’’ve struck a chord with any of you trial-lawyer types, and you’’re convinced that your life will be happier if you ditch the trials and focus on appeals, come on over to The Dark Side. There’’s plenty of room for more advocates who are committed to quality appellate representation. If you’’re like me, your only regret will be that you didn’t do it ten years sooner.

As for my pal, who knows? Maybe this iteration of my Reasons will convince him. Rick, my brother, is any of this getting through to you?