Should the lawyer with the most knowledge of the case or the one who has the most appellate experience appear before the Court of Appeal?
One of the questions most frequently asked of appellate practitioners is whether the trial lawyer or the appellate specialist should conduct the oral argument. The answer might appear obvious — the appellate attorney — but there are advantages and disadvantages to having either the trial attorney or appellate attorney at the lectern.
In making this decision one should recall what oral argument entails. Such an argument requires extensive preparation because it must not be a regurgitation or even a summary of the brief the panel of justices has already read. Rather, such an argument should focus on the key argument — and, hopefully, the various issues briefed in writing may be distilled into an argument in the singular — upon which the decision should rest. Preparation is also necessary to be able to quickly rebut arguments made by your opponent as well as to be able to decisively answer questions posted by the court.
Notice of the argument may be sent out eight to 12 weeks prior to the actual date. [1] This ordinarily occurs after the parties have given their estimate of how long the argument will take, with each party providing their own estimate. While there is a maximum amount of time, often 30 or 45 minutes, which may be allotted, there is no “average” or “default” amount.
That being said, 10, 15, or 20 minutes are common estimates. Bear in mind that if one reserves time for any rebuttal to your opponent’s argument, these minutes are included in your total time estimate, meaning rebuttal time will reduce the amount of time you have during your initial argument.
It may not be possible to hire someone to conduct the argument
Looking at this from a practical view, there may be financial concerns involved, as a client who may wish to pay to have an appellate brief written may not be able to pay for the cost of having the appellate attorney travel to, and prepare for, an appellate argument.
On the other hand, the trial lawyer may have a scheduling conflict which may make it impossible to prepare for the argument and/or travel to attend such. The worst-case scenario occurs if a trial lawyer without sufficient appellate experience who has hired an appellate lawyer to brief the matter then plans to argue before the Court of Appeal but is prevented from actually preparing by an unexpected emergency that arises in another matter.
Ethical implications to consider in deciding who should argue the appeal
This brings us to ethical parameters which may inform the decision of trial counsel to seek assistance. California Rules of Professional Responsibility, rule 11, sets forth the minimum competency required in a particular matter, explaining that such competence may be met by “professionally consulting another lawyer whom the lawyer reasonably believes to be competent. . . or referring the matter to another lawyer whom the lawyer reasonably believes to be competent.” A lawyer who does not meet or have the time to attain minimal competence may therefore meet this standard by referral to a lawyer who has.
Consider whether the presence of the trial lawyer will constrain the arguments which may be made before the appellate court
The cost of hiring an appellate lawyer to conduct the argument may be money well-spent for a number of reasons, some obvious and some less so. As but one example, the appellate practitioner may be much better suited to making an argument including an admission about what occurred at trial, such as an admission the trial lawyer may have missed a deadline coupled with an argument that there was no real prejudice from this error. While the trial lawyer could theoretically make the same admission, given human nature and the healthy ego many lawyers possess, it is less likely they will do so.
Perhaps the best approach is to have both trial and appellate counsel attend, with the appellate lawyer arguing the legal issues and trial counsel present but silent at the counsel table in front of the justices. This gives the impression the trial lawyer takes the matter seriously enough to both hire appellate counsel and attend the hearing.
Further, while appellate counsel should be prepared to argue the case without any “prompts” from the trial lawyer, it remains the trial lawyer’s presence means it is possible — if the need arises — for the appellate lawyer to discreetly confirm a key fact from the trial lawyer. [2]
1 - Because most appellate courts do not request input from counsel as to available dates, the argument may be set on a date conflicting with your most ambitious trial to date, daughter’s wedding, surgery, etc. A prompt call to the Clerk of the Court should inform you as to whether or not the Court of Appeal will entertain flexibility in scheduling the argument. Being prepared with alternative dates which are feasible for all other counsel will smooth this process.
2 - One should not count on being able to interrupt the argument to confirm a key fact with trial counsel. Still, I have observed appellate counsel who has been asked a very specific factual question as to what occurred at trial then politely ask the appellate panel whether they may briefly request confirmation from trial counsel sitting adjacent to the lectern. One panel I observed answered in the affirmative and trial counsel was permitted to nod yes and confirm this fact to appellate counsel.
