Inside the appellate judge’s head

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The grim reality is that most appeals fail. According to the Wisconsin Court of Appeals’ statistics for 2006, only 26 percent of civil appeals and 17 percent of criminal appeals yielded reversals. Lawyers and clients would do well to get inside the appellate judge’s head in order to understand the obstacles to reversal and, to the extent possible, give the court what it needs to reverse in their particular appeal.

That’s where retired appellate judges can help,” says Judge David Deininger, formerly of the District IV Court of Appeals. “Trials are visible. The public is familiar with them. Lawyers get to know trial judges and can observe what works and doesn’t work with certain judges and with juries.

“Appellate courts operate behind the cloak. Lawyers don’t get a lot of feedback on their work. Appellate judicial consultants can pull back the cloak hiding that process.”

While they don’t have crystal balls, these consultants do have decades of experience deciding appeals, enabling them to provide several valuable services. For the uninitiated, they explain what goes on behind the scenes — who touches the briefs and why, when and how the decision to hold oral argument or to grant a petition for review is made, how much time judges or justices spend preparing for argument, how the author of the decision is selected, and so forth.

Even seasoned attorneys can benefit when consultants review and react to draft briefs. “We don’t write briefs for lawyers,” former Court of Appeals Chief Judge William Eich explains. “Rather, what we offer is experience on the other side of the veil. We know what impresses appellate judges, and what makes them feel good.”

Judge Deininger agrees. “Attorneys often unknowingly write briefs starting in the middle,” he says. “They are so immersed in the trees that they don’t quite see the forest. We help the lawyer find the forest.”

Toward that end, they explain how lawyers can develop a roadmap for their appeals, aim for more favorable standards of review, structure arguments in the most persuasive manner, and edit their briefs so that they are comprehensible and convincing — in just one read.

For mock oral arguments, consultants read the briefs and, posing as judges, grill the attorney. They flag the weak spots, giving the lawyer an opportunity to sharpen responses or restructure arguments before the real event. Judge Eich recalls one rehearsal in a high-stakes appeal that lasted more than three hours. After the actual argument, the client noted that the mock panel had anticipated literally every question asked by the real one.

For those aiming at the Supreme Court, the insider’s perspective is critical. In 2006, only about 7 percent of petitions for review succeeded, proving just how hard it is to slip a foot in that court’s door. For nearly three decades, retired Commissioner Joe Wilson’s job was to read petitions for review and recommend whether the Supreme Court should grant or deny them.

“I know a good petition for review when I see one,” he says. “Some lawyers make the mistake of repackaging their Court of Appeals’ brief. But the Supreme Court is not in the error-correcting business. The compelling petition explains how the case gives the Supreme Court the opportunity to develop and clarify Wisconsin law. Lawyers sometimes have trouble distinguishing between error correction and law development,” he observed.

As a consultant on appellate cases, former Justice Janine Geske tries to “pull lawyers off the facts of their case and their vested emotions in it. At the Supreme Court level, the criteria for granting review spill over to the merits of briefs and oral argument,” she explains. “Lawyers must know the statewide impact of the decision they are advocating. They should understand that the justices don’t have the lawyer’s same familiarity with the facts of the case or depth of knowledge in specialized areas of law.”

Justice Geske thus helps attorneys shape their briefs and oral arguments accordingly.

All this consulting might seem like a litigation budget buster, but it isn’t. For an uncomplicated appeal, the task of commenting on draft briefs or running through an argument is measured in hours, not days or weeks. I have yet to hear a client say, “I regret hiring a former appellate judge.” Win or lose, the most common reaction is: “It was so helpful to see my appeal from the judges’ perspective.”

Colleen Ball is an attorney and president of Appellate Counsel, S.C. in Milwaukee. She can be reached via e-mail at [email protected].