Lawyers and judges say it’s easier to specialize than excel at trial and on appeal
It’s a rare breed of lawyer that can successfully handle cases at trial and on appeal, but not specialize in either.
Since the Wisconsin Court of Appeals was established in 1978, the number of cases it hears annually has more than doubled, from 1,201 its first year to 2,689 in 2012. With that increase has come a swelling of the appellate specialist ranks.
Institutions such as the State Public Defenders Office and many firms, including Milwaukee-based Quarles & Brady LLP, have established divisions dedicated to appeals work. And the Wisconsin Department of Justice plans to hire a solicitor general to help coordinate the appeals made by various state agencies.
An increasing number of states — including California, Florida and Texas — have established an appellate specialty, requiring various qualifications. To be a board certified appellate specialist in Florida, for example, attorneys must have been in practice for more than five years, have been solely or primarily responsible for 25 appellate actions and five oral arguments over the previous three years, and be able to document that a significant percentage of their practice is devoted specifically to appeals.
Wisconsin does not have such requirements, however, making it easier for lawyers such as Chris Donovan of Pruhs & Donovan SC, Milwaukee, to take on both appellate and trial work, practice areas many in the state say lend themselves to specialization.
Donovan said there is a decided advantage to working in both. His appeals work, he said, has made him more conscious of how various interpretations of the law can be applied to facts presented at trial.
“And the reason going to trial has helped me,” he said, “is that I’m not reading a cold transcript (when a case goes to appeal) and not having a feeling for what happened.”
Yet, Donovan and others said there are good reasons why attorneys should choose to concentrate on one type of practice more or less to the exclusion of the other.
Although trial and appellate work can be mutually reinforcing, they also draw on different sources of strength. Someone who is successful in one thus won’t necessarily be in the other.
“If they are doing it to get more cases or get more money in the door,” Donovan said, “and they don’t know what they are doing or don’t want to do it, I don’t think it’d be a good idea.”
Very little, for instance, in being able to charm a jury and think on one’s feet, ensures a person will have the patience and thoroughness needed to write briefs suitable for submission to the Court of Appeals, said appellate attorney Amelia Bizzaro.
Specializing in one rather than the other also prevents lawyers from taking cases before the same officials whose work they will call into question on appeal, said Bizzaro, the founder of the Bizzaro Law LLC, one of the few Wisconsin firms to concentrate on appellate law.
“A big part of this practice is being willing to say everyone else made a mistake; be it the attorney general’s or DA’s offices, or the judge,” she said. “If you are also a trial lawyer, that makes it harder on your other clients.”
Bizzaro said the decision to specialize came easy to her. Though she handled five trials in her first six months of practicing law, she said she found the experience stressful. Lawyers at trial, she said, can do a lot to both help and hurt clients.
By the time a case has come up for an appeal, though, an outcome usually has only way to go, she said.
“Generally, these clients are living their worst-case scenario,” Bizzaro said. “And I can only make that better.”
Bizzaro said she likes being able to look at a case from a distance and consider it in the light of legal precedent rather than having to worry about how certain facts will be perceived by juries. She said she enjoys doing research and writing, as well as considering specifics such as the effect the type used in briefs will have on judges.
Those are matters few dyed-in-the-wool trial lawyers have patience for, she said.
Lawyers who specialize in appeals work can help that area of the court run more efficiently by avoiding common errors, said Judge Brian Blanchard of Wisconsin’s Fourth District Court of Appeals.
Those who aren’t familiar with appellate work tend to have similar flaws in their briefs, Blanchard said, such as failing to ensure the argument section of a brief makes reference to all of the relevant facts. That sort of omission can leave judges guessing, he said, about the points a lawyer is trying to make.
Repetition of arguments is another flaw that often leads to confusion, Blanchard said.
“It makes it difficult to understand if we are hearing a new argument on page 10 versus page 5,” he said. “To me, it’s really a clarity issue.”
Colleen Ball, an attorney manager in the appeals division of the State Public Defenders Office, said it’s easy to tell when an appeals document was written more or less by rote, with little thought.
“You should treat a brief like a story,” she said. “You are telling the biography of a case. It’s like a history told in an engaging way.”
Aside from being an effective writer, lawyers also need to understand the procedures observed in appellate courts, Ball said. Rules often specify not only when particular documents must be filed, but also the particular ways in which information must be presented in briefs.
Specializing in either appellate or trial work would limit the need to remember everything for both, Donovan acknowledged, but he manages to juggle the two by working on both sides as much as possible.
Fortunately, Donovan said, he has had little need to seek out appeals work.
Much of his practice concerns criminal defense work in federal courts, making it fairly easy to follow a case from start to finish. Taking the same path in state courts is harder, he said, since clients in Wisconsin who want to contend they were represented by ineffective counsel at trial must do so shortly after being convicted, making it unlikely that the same lawyer would argue that point on appeal.
His first appeals case came to him more or less by chance, he said, but proved enjoyable enough that he decided to pursue more.
Adding the practice area has not greatly increased his caseload, he said, but it has supplemented the services offered by his two-person firm.
“It ebbs and flows,” he said. “Sometimes you get a run of clients who don’t want an appeal, and other times you have a run of times when you have all these appellate cases. If I didn’t file an appellate brief in a year or two, I feel I might get rusty and forget some of the procedural rules.”
Staff writers Correy E. Stephenson and Steve Lash of Lawyers USA, a sister publication of the Wisconsin Law Journal, also contributed to this report.