Tuesday, June 7, 2016

"The New Lawyer's Handbook" on appeals

Cover artThe New Lawyer's Handbook: 101 Things They Don't Teach You in Law School (2009) by Karen Thalacker, is not a new book. It contains sage advice on the practice of law and being a lawyer, aimed (naturally enough) at newly admitted lawyers. Old dogs won't learn any new tricks (though good reminders never hurt), but young pups will definitely derive some benefit. What prompts this pseudo-book review is Chapter/Tip 82 (of the eponymous 101), titled Appeals Are A Different Animal. The gist of this chapter is as follows: Yes, the trial lawyer may 'know the case' better than anyone, having worked it all up, but is that lawyer the best person to do the appeal? Thalacker urges lawyers to ask themselves some probing questions to answer that question.

Image result for different animalFirst, "Can you follow directions?" i.e., the rules of appellate procedure are deep and complicated and can kill your appeal. Are you okay reviewing all the rules? "Does this sound enjoyable or tedious? If it sounds enjoyable, keep reading."
Second, Does the possibility of oral argument "excite you or make you nauseous? If you are excited by the thought of being peppered with questions by several people in robes, keep reading."
Third, Do you have a mentor with the time and experience to help you? I.e., have an appellate specialist on speed-dial.
Fourth, Is it really in your client's best interests for you to handle the appeal? "Be honest with your client about your level of appellate experience. If [your client] still wants you to handle it and you have answered in the affirmative to the first three questions, you might want to give it a try."

A sound analysis! (Also, Chapter/Tip 81, Make Your Record For Appeal, is a good one too, noting: "A word of warning. Most attorneys right out of law school are more familiar with appeals than they are with trial work. Evidence does not magically appear in the appellate record. You need to put it there ...." And Chapter/Tip 80, Know When to Sit Down and Shut Up, speaks for itself...)