Why shouldn't my trial lawyer handle my appeal?

You would think that the trial lawyer who has handled the case for a year or more would be the best choice for taking the case on appeal. But you would be wrong. A case in the trial court is very different from one in the appellate court, where very different rules and standards are mandatory.


Trial attorneys view the case from a perspective that is incompatible with appellate litigation. They argue the facts and become engrained in strategic choices made about the facts. They do not have the broader perspective required for an appeal, where the court is concerned about the application of the law statewide rather in just one case. They tend to repackage their trial court argument for the appellate court.


Trials are full of human emotion, facial expressions, voice intonations, and a comparison of the opposing parties constantly in view. The charisma and story-telling skills of a trial attorney are lost on appeal, where the case is reviewed based on the cold written transcript, which is largely devoid of emotion.


A trial lawyer seldom recalls the precise events of trial because they are busy calculating presumed testimony, entering and objecting to evidence. Trial counsel's mind is on their trial strategy, not on memorializing what has occurred during trial.


An appellate attorney starts with the appellate record, just like the appellate court. The record is examined without trial counsel's bias, just like the appellate court. This is critical because the case on appeal is not a new trial, it is about procedural or legal error occurring in the trial court.


Each issue for appeal must withstand the standard of appellate review applied to the particular type of issue raised. Swaying an appellate court requires arguments presented through appellate-level research and clear written prose. Appellate oral argument is a substantive discussion about the law, not the facts. Appellate work requires large blocks of uninterrupted time, a luxury not available to trial lawyers.


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.