Experienced appellate counsel brings a similar value to the trial lawyer's practice. Since appellate work is a specialty in its own right, retaining appellate counsel offers several distinct advantages.
- First, appellate counsel must be a highly skilled writer. Just as depositions and trial work are the lifeblood of a trial attorney, crafting sophisticated legal arguments through clear, direct prose is the handiwork of appellate counsel. This is perhaps the most important function of appellate counsel since the overwhelming majority of cases are decided on the briefs alone.
- There is also the factor of time. Brief writing is a labor-intensive exercise that requires large blocks of time to analyze the record and research the issues. This process can take as long, if not longer, than writing the brief itself. Once a draft is finished, the attorney must edit the brief—an undertaking that often requires the writing and editing of several drafts until the attorney has created a polished work product. With an active deposition and trial schedule, the trial lawyer rarely has the large blocks of time necessary to give every detail the utmost attention. By contrast, appellate counsel, enjoying the benefit of the longer deadlines inherent in his work, can deliver a brief of the highest caliber.
- Third, appellate counsel will bring a fresh perspective to the case. Oftentimes, trial counsel, having litigated numerous motions at the trial level, mistakenly believes that a hotly contested issue is in and of itself worthy of litigating on appeal. With the clear eye of an outsider's perspective, appellate counsel can bring a big picture approach to the matter and skillfully sift through the record, raising only those issues with the greatest likelihood to secure a favorable result.
It has been said that appellate practice is the last refuge of the generalist because appellate practitioners are tasked with communicating complicated—and occasionally arcane—subjects to a panel of generalist appellate judges, who on any given day, wrestle with a wide array of topics, ranging from land use law, family law, personal injury, and criminal law, among countless others. The appellate litigator, sensitive to this reality and the pressing demands of the court, understands the need to succinctly communicate complex issues to a non-expert audience pressed for time.
On occasion, a case arises that presents an issue of first impression. This scenario demands the hiring of experienced appellate counsel. Within the specialized arena of appellate practice, arguing before the State's highest court is an art form unto itself. Appellate counsel, cognizant that the New York Court of Appeals rejects numerous cases that were wrongly decided—only accepting those raising important, novel issues—recognizes that practicing before the Court requires a fundamentally different strategy than that used in the intermediate appellate court.