A common question often arises about the difference between trial litigation and appellate advocacy. Both are lawyers, but are their roles different? In essence, both seek nothing other than a favorable outcome for their client. The short answer, of course, is yes, there is a difference. Even as a lawyer, it is sometime easy to forget that appellate advocacy, where your goal is to convince a panel of judges of the soundness of your legal prowess, calls on a far different skill-set than a trial attorney, whose goal is to convince a panel of non-legal minded individuals of the merits of the case. Trial attorneys live with their cases for years and develop a thorough understanding of the facts relevant to each issue. It is that attorney's job to convey those facts in such a way as to convince strangers that their client should be compensated for their injuries. Appellate advocates, on the other hand, have only a few months to develop the legal theories that are necessary to winning the appeal. The appellate attorney must winnow the facts, and present the issues in a few concise, well-supported points detailing the intricacies of the law.
So why the basic overview? As most trial attorneys know, there comes a point where even the most sympathetic of plaintiffs, with the best supporting facts, lose cases. An appeal must be filed. At this point, the trial tactics cease and appellate advocacy must begin. Googling appellate advocacy will likely lead to more advice than is helpful. In the simplest of terms, one of the most important points to remember is that although some facts help on appeal to garner the court's attention, the primary focus must be on the legal writing. Many times, appellate briefs drafted by trial attorneys can be heavy on facts and black-letter law, and only buried within the briefs is the analysis the appellate panel is looking for. This is understandable based on experience drafting trial court briefs after being immersed in the facts. The reverse is true for appellate advocacy, who spend more time dealing with the theoretical aspects of the law and are not as well versed in the practicalities of litigation.
This isn't to say that one set of skills is better than the other. It's simply a reflection of the realities of litigation; lawyers need to switch gears and focus on the right aspects at the various stages. In the trial court, the briefs should rightfully focus on the facts of the case. The moment an appeal becomes necessary, however, the writing must change. In larger or important cases, it may even be beneficial to bring in a specialist to assist in handling the appeal, someone that focuses on the appellate side. If nothing else, it helps to have fresh eyes reviewing the case before developing the arguments, or even weighing the likelihood of success on appeal. It is quite possible for the appeal to focus on issues that were not thoroughly developed at the lower levels or even be brought in the first place. It is something to keep in mind in the unfortunate event of a unsuccessful, but deserving, case. Minding the differences between the persuasive styles can go a long way to a successful outcome.
