Zealous representation is good, but get a second opinion

Most lawyers are not only familiar with, but frequently utilize, private mediation and arbitration services. Fewer lawyers contemplating an appeal or writ proceeding think to call on a neutral to help them evaluate the strengths and weaknesses of their position and determine how to present their case in the best light possible.

Advocates believe, with reason, that they know the facts of their case and the applicable law better than anyone else. Sometimes, however, in their zeal to provide the best representation possible for their clients, advocates lack distance from the case and find it difficult to objectively assess either the weaknesses of their own position or the merits of the opposing party’s position. After a court enters judgment or makes a ruling significant to the outcome of the case, advocates must guide their clients through a series of decisions concerning future steps in the litigation. Having a fresh and dispassionate pair of eyes helps to evaluate those next steps and can significantly enhance the chances for ultimate success. A neutral experienced in appellate matters can provide analysis and assistance as the advocate determines how to advise the client.

This is particularly true when it comes to evaluating prospects on appeal. Neutrals who have served on an appellate court or who have years of experience as appellate advocates can provide valuable insight that can assist in determining the best way to overturn an adverse trial court ruling on appeal or protect a favorable ruling. Some examples illustrate the point.

Whether attempting to defend a successful summary judgment or verdict in the trial court, or overturn an adverse ruling, the advocate must assess the likelihood that the ruling will stand on review by the appellate court. Some questions that should be asked at this point include:

● Is the order appealable?

● Was the ruling based on a legal determination or a mixed question of law or fact?

● What standard of review will the court apply?

● If there was a legal error, was it prejudicial?

● In state court, is the record sufficient to overcome the presumption of correctness?

● If the ruling was not one resulting in a judgment, is the appellate court likely to grant writ review or determine that the question can be adequately addressed on appeal from a final judgment?

● Are the issues presented ones that can withstand the delay and cost of seeking appellate review?

● Finally, after the appellate court has ruled, is a petition for rehearing or review appropriate or advisable, and, if so, what grounds should be raised?

Consultation, before an appeal is filed, can be invaluable. At this phase, before investing in the appellate process, a look at the issues presented requires analyzing whether there is an appealable order, and what issues, if any, are likely to be fruitful to pursue. This is also the time to evaluate the impact of the applicable standard of review given the legal and factual record in the trial court. Experienced appellate professionals can provide valuable assistance to counsel thinking through these critical, early-phase questions.

Once the appeal has been filed, given the multiple questions that must be addressed in assessing likely outcomes on appeal, neutral analysis can provide an invaluable perspective. While lawyers often engage one or more neutrals to review draft appellate briefs or preside over a moot court prior to oral argument, the range of services that neutrals with significant experience on the appellate bench – or in front of it – can provide at this point in the proceedings is significantly broader. Choosing the number and order of issues to be presented on appeal can often mean the difference between success and failure in the appellate court. As a result, a neutral evaluation of the strength and persuasiveness of potential issues can help advocates write a more effective brief.

After briefing is complete, determining which issues should be addressed at oral argument is equally important to ensure an effective oral presentation. Engaged to provide neutral evaluation and analysis, the input of a neutral experienced in appellate procedures can suggest possibilities for sharpening arguments, crafting responses to unanticipated questions, and clarifying the issues to be raised. For skilled trial advocates, consulting with such a neutral can identify approaches different from those required in the lower court.

In addition, a neutral with appellate experience can bring unique insight to a post-verdict/pre-appeal mediation by providing a knowledge-based analysis of potential outcomes that can help guide the parties to resolution.

In short, having a neutral with appellate experience to provide evaluation and analysis can be a huge value-add for advocates counseling their clients on the merits of filing an appeal or writ and prosecuting or defending an appellate proceeding.