What is the difference between trial advocacy and appellate advocacy?
Professionals often choose to focus their practice based upon personal interest. There is just too much material to master everything. For example, some doctors are primary care physicians while others are dermatologists or surgeons. Most lawyers also limit the focus of their practice.
The Trial Lawyer Environment
Trial lawyers are typically very interrupt-driven given the number of ongoing client matters at different stages of litigation. Some are new, in need of intake processing. Others require a temporary order. Still more are in the critical and detail-oriented discovery phase to uncover the pros and cons for which litigation relies. Finally, there are those being prepared for trial and the trial itself. Trial dates, postal mail, email, telephone calls, and client meetings fill the trial lawyer's day.
Trial advocacy is the collection of tactical skills required to achieve a desired result. Some skills include jury selection, delivering opening statements, examining witnesses, and delivering closing arguments. The facts, good and bad, drive the storyline delivered though trial advocacy skills. Charisma, confidence, and timing are at a premium. The object is to have the judge or jury wanting to listen and believe your chosen version of the facts. That is how trials are won. But there are no guarantees, juries and judges make mistakes. That's why there is an appellate court.
The Appellate Attorney Environment
Appellate attorneys function in the opposite environment. Appellate litigators handle fewer client matters and rarely require client meetings. Large blocks of time are required for transcript and record review, appellate-level research, analysis, and writing. The primary product of an appellate attorney is the written brief, which is far more substantive than any motion filed in the trial court. Appellate oral argument is more akin to a formal dissertation on the law than any trial court hearing. Appellate litigation is governed by far more precise and demanding rules and procedures than those experienced in the trial court.
Any case can be appealed, but only certain cases are viable for appeal. An experienced appellate lawyer can analyze a case for appellate-worthy issues so that his client can decide whether or not to go forward with an appeal. Knowing what appellate judges want, and the standard of review that applies to each issue presented is critical. The key persuasive tool on appeal is the written brief. The brief must speak to the appellate judges in a clear, professional presentation of the case on appeal. There are no short cuts, and a merely repackaged trial court motions is a recipe for failure. Oral advocacy is a discussion with the panel of appellate judges where the case is presented through answers to their questions. It is a frank, honest discussion on the law.
More answers to frequently ask questions about appeals are available on this website. If you have additional questions, or are ready to proceed with your appeal, call Appellate Attorney William Driscoll at 978-846-5184.