Most litigators know one, or have heard of one – the appellate specialist. Whether formally credentialed or not, this particular attorney has done more oral arguments in the past year than you have done in the past 20. Yet, when the time comes, you, the seasoned litigator facing an appellate issue, are apprehensive about engaging this specialist. In this article, I will discuss frequently heard myths and misconceptions about utilizing an appellate specialist with the hopes of demystifying their practice, demonstrating that an appellate specialist is truly a go-to resource for the trial attorney, and improving outcomes for you, your firm and your client.

Myth #1: They will want to take over the entire case.

Whether your appellate specialist is an attorney inside or outside your firm, the most common reason practitioners are reluctant to consult an appellate specialist is the fear that the specialist will try to take over the entire case. While an appellate specialist certainly could take over the entire appeal, the appellate specialist is there to serve to the extent of your or your client’s needs.

When being consulted by another attorney, an appellate specialist recognizes that the attorney is the client. The appellate specialist’s goal, like all attorneys, is to meet the client’s needs.

Do you need strategic engagement on whether or not to appeal? Do you need help with the formalities of initiating the appeal, which vary widely between jurisdiction and type of case (and include many pitfalls)? Do you need help getting or opposing a discretionary appeal? Do you need issue spotting and research assistance? Do you need help with brief formatting and logical structure? Do you want to know how to effectively prepare for oral argument?

The appellate attorney engages at your request, and only for the tasks you consider appropriate. While considering the original attorney as the client may cause some “upselling,” the appellate specialist does not take it personally when you limit their services to your particular needs. These attorneys have extensive training and experiences that qualifies them to be certified as some of the few attorneys permitted to use the title “specialist;” you should use that experience.

Appellate specialists are just like any other retained specialist – they are there to assist to the extent necessary to improve the outcomes for your particular case. And, if the particular appellate specialist you have contacted insists on taking the case in its entirety? Call me – I consult to the stated needs.

Myth #2: It costs too much to get someone else up to speed.

So you, the modern litigator, has recognized the benefit of calling an appellate specialist. You know, whether by reading this article, or from past experience, that they will only attempt to take over the entire case if you let them. What’s the next barrier to reaching out?

For most attorneys, it is the concept of cost. The trial litigator has been “hip deep” with factual development and the legal filings for quite a bit of time. The cost-conscious attorney knows that most clients are not going to be happy about paying to get someone else up to speed on the case.

The appellate specialists have heard this myth as well. Frankly, they acknowledge this as a concern. For that reason, most appellate specialists are willing to “accommodate” their billable time to get up to speed and provide actual value to the matter needing consultation. This same argument goes for switching firms after a trial or adverse lower court ruling – the appellate specialists know that they have to eliminate the benefit of incumbency. If that means coming to an agreement on how time getting up to speed is billed, they are willing to do it.

Appellate specialists like working on appeals – and most frequently recognize that their cost must be aligned with the benefit they bring to the table, which include expediency in the appellate process because of their deep and repetitive experience, and the needs of the client. They are ready for and used to this conversation. Don’t let the fear of additional cost keep you from improving your potential outcome.

Myth #3: I’ve done this before, I can do it again.

As mentioned, appellate specialists like working on appeals. They also recognize that almost everyone else likes working on appeals. It’s a closed-universe law exam problem, where you get to stand up and do a 15 minute oral argument at the end. Does this mean you are the best attorney for your client to handle the appeal if you aren’t doing them very regularly?

Appellate specialists acknowledge that if you have a bar license, you can run an appeal. You can be successful without an appellate specialist. The reason to engage the appellate specialist is not because you are incapable of doing it – it is because they work day-in and day-out with the applicable rules, the judges’ expectations and are intimately familiar with the opportunities to win that don’t require a full merits opinion.

There are litigators that are comfortable handling numerous trial court cases across jurisdictions in a year that may not have had a substantive appeal in any jurisdiction in the past 10. Your friendly appellate specialist knows these rules, has written briefs more frequently and is ready to assist you in maximizing opportunities for success. Like hiring an economic specialist to model your client’s damages, the trial attorney could do it but, with the help of an appellate specialist, can do it technically correct, faster and better.

Even if the trial attorney writes the brief and performs the oral argument – what’s the harm in having a consulting specialist to help better understand what tone and content the appellate judges are expecting to see in briefing and oral argument? Someone to kick the tires for you so to speak.

Myth #4: There’s nothing I can’t figure out from reading the rules.

Every subject matter specialist knows there are the written rules and the unwritten rules. And confusingly, sometimes there are the rules that used to be written, and are not now, but are still followed.

What if you realize at the last minute that you need an extension on your brief? What appellate jurisdictions will grant them freely or which ones will dismiss your appeal after you file a motion for extension instead of the brief? Which courts like being called with questions and which ones will tell you to file a motion instead?

Your local appellate specialist generally knows the answers to these questions. If we’re presuming the responsible litigator to be cost-conscious (see Myth #2, above), why not go to the most direct and likely quick answer to questions critical to your appeal?

As to unwritten or grossly misunderstood or misapplied rules, there are two easy examples. In seeking discretionary review, the Ohio Supreme Court Rule of Practice 7.04(C)(1) requests “propositions of law.” Did you know that the Ohio Supreme Court used to tell you what propositions of law were supposed to be? The Rule used to include a comment stating that the propositions of law were to be  “set forth [in] a statement of the rules of law which he contends are applicable to the facts in the case and which, if he were to prevail, could serve as a syllabus.” These are not “assignments of error” even though experienced practitioners still frame them that way when seeking review. This is the type of opportunity for improvement that working with an experiences appellate specialist provides.

The second example of misunderstood appellate law relates to everyone’s favorite three word appellate term: “final appealable order.” Ohio courts only have jurisdiction to review “final appealable orders.” If you are not appealing from a judgment resolving all claims against all parties, and do not understand the multiple sources of final appealable orders, you run the risk of briefing the merits of the case only to receive a dismissal due to the jurisdictional defect. An appellate specialist’s first review is an analysis of the technicalities, including, for example, final appealable order issues. This just saves time and money.

Misconception #1: Appellate specialists only handle appellate cases.

So we have cleared away the myths. You, the litigator, now understand the value and importance of engaging with an appellate specialist. You understand that they aren’t trying to steal your case, that they shouldn’t cost more than the value they provide, and that they provide needed experience in areas that may not be readily accessible. From here, all that’s left is to clear away are the misconceptions involved in working effectively with an appellate specialist.

The number one misconception about appellate specialists is that they only work on appeals. This is not only wrong, but it fundamentally misunderstands how an appellate specialist is capable of assisting your case. An appellate specialist needs to also have trial court experience – from pleadings, to discovery, to the rules of evidence, to dispositive motions and to trials. An appellate specialist without direct (and active) experience handling these phases of trial court litigation will lack the ability to identify where the error occurred and whether (or not) it was preserved.

An appellate specialist should be a reasonably good trial court litigator as well. The application of the civil rules to the admission of evidence, the determination of dispositive motions, and the underlying legal theories supporting or defending a claim are all the same. They have to understand how all of the trial court processes work to make the record and establish the available arguments on appeal.

Misconception #2: I only need to call the appellate specialist after the final ruling comes in.

Earlier, we described appellate work as a “closed universe” research problem resulting in a brief and oral argument. This closed universe status is the appellate specialist’s greatest tool and greatest agony. The closed universe defines the availability of arguments and the presence of evidence necessary to justify those arguments.

Like you, the appellate specialist has one overarching objective – to win on behalf of the client. The misconception here is that they are only of utility after the case is decided.

Appellate specialists have varying utility at each phase of a case or proceeding, but are frequently underutilized by attorneys good at positioning their case in front of a judge or jury, but who may not be used to having to make sure a record exists for the purposes of an appeal.

There are many examples of this, but a jury trial provides a concrete set of examples where an attorney focused on appellate needs may be of assistance. At voir dire, the appellate specialist is making sure that objections to jurors based on court responses are properly documented and on the record (even if the judge wants to take the responses in chambers). The appellate specialist makes sure that each evidentiary objection is heard, a ruling is made on the record, and that any denied evidence is proffered (or otherwise it is as if the dispute never happened). At the jury instruction phase, the appellate specialist makes sure that the objection process occurs in compliance with the applicable rules so that the objection process is preserved in the event of an adverse outcome. Depending on the complexity and cost of the case, asking the trial court litigator to focus on weeding out inappropriate jurors, presenting evidence, making and defending evidentiary objections, and negotiating jury instructions in addition to these appellate tasks makes a complete effort so much more challenging.

Separately, an appellate specialist can be of great assistance in preparing clients and litigators for hearings before local administrative agencies such as a Board of Revision or a Board of Zoning Appeals. These agencies, which clients frequently appear in front of in an unrepresented capacity, are also creating the closed universe record from which an administrative appeal is based. Knowing how to make and improve a record can go a long way to improving outcomes.

Porter Wright’s Certified Appellate Specialist is Terry Posey, who is certified by the Ohio State Bar Association as a Ohio Appellate Law Specialist.