While trial lawyers can handle appeals, most do not. The reason is because appellate practice is as different as night (appeals) from day (trials). Practicing in both realms means extensive experience in both areas of law, which is quite difficult to achieve. Most trial lawyers like trying cases, and thus do not spend the time and effort to be successful appellate lawyers. Not so at Ciyou & Associates, P.C. Our experienced attorneys can handle complex family law cases and other civil and criminal cases as well as appeals. This blog explores the three key differences between trial lawyers and appellate attorneys.
The biggest difference between a trial attorney and an appellate counsel is structural. A trial lawyer spends his or her days inside of the courtroom arguing with an ever-developing narrative full of twists and turns and the suspense and drama of the best movie of the day. And he or she makes judgment calls on the “fly” during trial and gets it right most of the time; this comes from extensive experience. The narrative for the judge or jury can be changed to address the evidence as the trial unfolds in real time. Only experienced trial lawyers can do this well. Trials are physically and emotionally draining experiences that deal with the raw side of otherwise “normal” society. Appeals could not be more different.
With appeals, the appellate lawyer is addressing a “cold record” as Indiana’s appellate courts call it.1 What this means is that unlike a judge or jury who can assess credibility of a witness, based on verbal and non-verbal communications during trial, the appellate record is based on a typed word-for-word transcript, exhibits and any portions of filings the appellate counsel wants to include in the appendices filed with the brief. There is little drama and suspense as the appellate attorney presents his or her arguments on paper in brief format to three (3) judges on the Court of Appeals of Indiana. These judges review the filings and decide the case. Again, most lawyers do not aspire to do both, nor develop the skills to handle trials and appeals.
The second difference is that the record or evidence is “fixed” or set in stone, as it were, based on what was presented at trial. The appellate counsel cannot add facts or take legal positions not raised at trial.2 Instead, the appellate attorney is limited to the written documents that may be relied upon on appeal. Some of the best trials are lost because of trial strategy (where certain evidence was not put on for sound reasons) or because an offer of proof was not made. Thus, there is no drama or suspense with appeals, although the appellate lawyer may well get a reversal on a theory not presented at trial. An example would be the trial court’s order in a parenting time case, ordering a parent not to discuss the case with anyone because this is overbroad and a prior restraint of protected free speech, requiring reversal.3
The third key distinction between a trial attorney and appellate counsel is limited client contact. Since the appellate counsel is limited to the “cold record”, he or she does not ordinarily have a great deal of contact with the client, except at the outset to clarify issues for appeal or handle administrative tasks, such as payment to the court reporter for transcribing the transcript.4 Many appellate clients, who do not realize the way appellate attorneys work, are put off by the lack of contact, thinking their case is being neglected. This is far from the truth for good appellate attorneys; this is just the way appeals work. The appellate counsel will argue for the issues that are important to you so long as they are not frivolous, as well as make the best arguments on appeal on other issues gleaned from the materials he or she reviews (e.g., transcripts, exhibits, and motions and orders) in your case to give you the best chance to obtain a reversal. This is done by hours of interacting with the written materials and extensive appellate experience.
Ciyou & Associates, P.C. advocates are skilled trial attorneys and deft appellate attorneys. We have handled thousands of hearings and appellate motions/briefs. Perhaps we are a good consideration for your appellate counsel? This blog is written for general educational purposes. The blog is not intended to be relied upon for any given legal issue or matter. The blog is also not legal advice. It is an advertisement.
- MacLafferty v. MacLafferty
- Tyagi v. Tyagi, 184 N.E.3d 1159, 1166 (Ind./Ct.App.2022).
- Israel v. Israel, 189 N.E.3d 170, 179 (Ind.Ct.App.2022).
- Indiana Rule of Appellate Procedure 9(H): “The Court Reporter may require from the appellant a fifty percent (50%) deposit based on the estimated cost of the transcript. . .. Within ten (10) days after the filing of a Notice of Appeal a party must enter into an agreement with the court reporter for payment of the balance of the cost of the transcript.”