Elevate Your Advocacy: Understand the Differences Between Litigating Trial and Appellate Courts

In the Midyear Meeting program “Elevating Your Advocacy: Understanding the Differences Between Litigating Trial and Appellate Courts,” an expert panel of lawyers and judges provided an audience of young lawyers with sound advice on trial and appellate court litigation.

Panelists included A. Vincent Buzard, Harris Beach PLLC; Judge Judith A. Cowin, Supreme Judicial Court of Massachusetts; Rory FitzPatrick, K & L Gates; and Sandra L. Lynch, United States Court of Appeals for the First Circuit in Boston.

In his “opening argument,” Buzard likened court to a battle, noting that trial judges come on the battlefield to “shoot the wounded.” Bearing this in mind, it is important that lawyers be as prepared as possible to lessen the chances of a case being “shot down.”

The underlying difference between trial and appellate cases is that trial cases are presented with evidence for a jury to decide while appellate cases are presented to a judge or a panel of judges for a final ruling. Panelists offered substantial advice on how lawyers should prepare before presenting in the appellate court.

New and seasoned practitioners alike should keep in mind that when identifying issues at the appeals court level it is critical to mention all issues in legal briefs. By leaving out issues, lawyers essentially waive their claims. However, lawyers likewise should be careful not to bog down briefs with too many issues. There is a fine line between too much and too little, panelists warned.

One of the most effective ways to ensure that all of your issues are covered without overloading your brief is to develop a central theme, then stick to it.

“Be sure to at least put it on the record, although you don’t necessarily have to argue each point,” offered FitzPatrick. Appellate courts only review new arguments under very strict standards, so putting arguments on the record is vital.

Another inherent difference between trial and appellate cases is the way each views the importance of the credibility of witnesses. Lawyers should not waste time enhancing the credibility of witnesses in appellate courts like they would at the trial court level. Appellate courts do not benefit from this information, although your credibility as a lawyer must be maintained as always.

Asked for practical advice on presenting cases before an appellate court, the panelists stressed that practitioners should recognize that a decision does not only affect their client, but the industry as a whole. Lynch emphasized that an appellate court is deciding a standard, not a single case. Additionally, lawyers should limit briefs to 50 pages, avoid jargon and include statutes in the addendum.

For lawyers trying cases in trial court, the panelists suggested they develop as much information as possible from the onset and refine their cases nearer to trial, incorporate proof citations in outlines and remember that at this level, the court is bound by precedent— unlike appellate court, lawyers are not arguing new policy for the industry, but simply a ruling for their individual cases.