What distinguishes the appellate skill set from the talents of a top-notch trial lawyer?
When I decided to focus on appellate advocacy, I realized that what I wanted was to be “a lawyer’s lawyer”—the person trial lawyers would turn to when a judgment needed fixing. In other words, I view myself as the law person on the case, someone who argues to judges, not juries. Someone who can deliver a winning message in only a few minutes or a few pages.
When is the best time to hire an appellate lawyer?
About ten years ago, I was typically hired to handle an appeal after a bad verdict. But often, I would run into waiver problems when the appellate court would not consider a great argument because it was not preserved in the trial court. Now, since Georgia has climbed to the top of the “hell hole jurisdiction” list—where nuclear verdicts from $10 million to $100 million are not unusual—clients often ask our firm to come into a case before trial to make sure that the legal issues are fully developed as needed for a successful appeal. We are sort of a safety net if the trial is lost.
What are some examples of the role of an appellate lawyer on the trial team?
Appellate lawyers can be an excellent resource in the trial court. For example, they can make sure the pretrial order includes all possible legal angles, otherwise a good claim or defense may not be allowed at trial. Appellate lawyers also can handle motions-in-limine seeking to exclude prejudicial evidence from the trial, and also prepare pocket briefs on points of law that might come up during the trial. Really, anything that involves a legal analysis as opposed to factual development can be assigned to the appellate lawyer—jury instructions, motions for directed verdict, and even prompting a trial lawyer to make objections if needed.
Do you ever encounter tension with trial lawyers when asked to come into their case?
The appellate and trial lawyers almost always make a seamless team. In fact, I have found that the lead trial counsel frequently asks to have an appellate lawyer in the courtroom. This is not just CYA for a high-stakes case. Many trial lawyers realize that having someone else handle the legal arguments frees them up to work on outlines for cross-examination or to spend time with witnesses. And no top trial lawyer wants to be stuck in a charge conference thrashing through proposed jury instructions right before delivering a closing argument.
How long has appellate advocacy been recognized as a distinct practice area in Georgia?
I formed the Appellate Practice Section of the State Bar of Georgia about 20 years ago. At that time, some lawyers self-identified as appellate practitioners, particularly in the government sector, but this was not common. Georgia’s appellate judges, however, were instrumental in gaining approval for our new section because they believed that it would enhance the quality of the briefs and arguments in their courts. I think it has done so. The appellate bar certainly has grown over the years.
What tips can you offer on effective legal writing?
Once, when I was Chair of the ABAs Standing Committee on Amicus Curiae Briefs, I had the opportunity to ask this question when meeting with Chief Justice John Roberts. He shared that when he was an appellate lawyer—perhaps the nation’s finest—he struggled to fit his arguments into the page limit or word count. He said, though, when he went on the bench, his perspective totally changed. In other words: “Shorter is better.”
What about oral argument? What is the best way to prepare for that?
It’s funny that it takes so long to properly prepare for an oral argument that will last only 15 or 20 minutes in a Georgia appellate court. But the Georgia appellate judges are active questioners who will not hesitate to interrupt, asking about any issue of fact or law. And then there are those darn hypotheticals. So, it is imperative beforehand to study all the briefing, all the cited cases, and all pertinent parts of the transcript and record. And practice is also so important. I always have at least two prep-sessions, one roundtable with the clients and co-counsel to vet themes for the argument, followed by a formal moot court a few days in advance of going before the real judges.
What advice do you have for younger lawyers wanting to develop an appellate practice?
Work hard; give it your best; and if you win a big case, make sure people know about it. Also, seek out pro bono appeals, which provide an excellent opportunity to get oral argument experience. And volunteering to write amicus curiae briefs can be a way to be associated with high-profile matters.
How does appellate practice in Georgia compare with handling federal appeals?
As appellate advocacy has become a recognized specialty in Georgia, an identifiable appellate bar has emerged consisting of lawyers who frequently argue before the state’s Court of Appeals and Supreme Court. This is not unlike the US Supreme Court bar, where certain lawyers are hired because they have abundant experience at that court and are well known to the Justices. With that familiarity comes credibility, which is crucial in a high-stakes case. By the way, practitioners do not earn credibility without being meticulously faithful to the record and cited legal authorities again and again. State practice does differ from the federal in some respects, however.
For example, in Georgia, the Court of Appeals issues a docketing notice that identifies the three judges who will decide the appeal. Not so in the Eleventh Circuit, which handles federal appeals from Alabama, Florida, and Georgia. The identity of the federal judges on you panel is not disclosed until two weeks before oral argument, and then only if there is an oral argument. Moreover, arguing in the Eleventh Circuit tends to be more intense than arguing in the Georgia Court of Appeals—but not more challenging than arguments in the Georgia Supreme Court where there are nine judges, not just three, who can pepper the advocate with questions.
How is practicing in an appellate boutique different from the practice you had in Big Law?
I was head of the Appellate Team of a megafirm for years. It was fun, working with other lawyers from around the country. But the switch to an appellate boutique is rewarding in another way. We are driven by the thrill of problem-solving, not the billable hour metric. And we have a sense of old-fashioned collaboration. Our lawyers love working with each other, with our clients, and with other firms. For example, every week we gather to go through our docket, sharing thoughts about our work, which often triggers insights from colleagues who are not even working on the particular case. As a result, our clients get the benefit of our collective brain power at no extra cost. And we experience a lovely camaraderie that seems to have disappeared from big firm practice.
Laurie Webb Daniel
Webb Daniel Friedlander LLP
An Appellate Boutique
75 14th Street NE, Suite 2450
Atlanta, Georgia 30309
(404) 433-6430 (cell)
www.webbdaniel.law
Published by: www.lawyer-monthly.com – June 4th, 2024