PRINT PAGE

criminal articles

 

The Relationship Between Trial & Appellate Counsel:
Would you Treat a Friend Like That?

by Madeline McDowell
Former Staff Attorney
Central California Appellate Program


and

Gary R. Nichols

Supervising Dep.,
Writs & Appeals Section
San Diego Public Defender's Office

gnichopd@co.san-diego.ca.us
(619) 338-4768

 

Gary speaking:

I am not your typical, if there is such a thing, appellate lawyer. I started my career wanting to do nothing by jury trials. I've done over 100 jury trials from misdemeanors to DP cases. I only started doing appellate work because I hated losing so badly when I didn't think I should have. I couldn't just let it go or let it go to someone else. I took it personally and wanted to extract my vengeance personally. I had some success in the appellate arena and got hooked on the heady power of the pretrial writ. Soon, I found myself doing writs and occasional direct appeals on colleague's cases too. Next thing I knew, I was the writs and appeals lawyer for the public defender's office. I haven't tried a case in a long time now.

So, the 200 trial lawyers in my office think of me as one of them. Appellate lawyers see my name on the occasional published appellate opinion and can talk appellate talk with me and accept me as one of them. This sometimes puts me right in the middle between these two distinct camps of indigent criminal defense attorneys. From this unique position I sometimes mediate the not uncommon disharmony between trial and appellate counsel. In fact, I have designated myself the official liaison between appellate counsel and our trial lawyers. This has lead me to a personal project–improving communication, cooperation, and respect between trial and appellate lawyers. The following are some of my observations and suggestions.

Madeline's response:

I do not know what a "typical" appellate lawyer is. My own background includes trial practice. Admittedly, I always favored doing the "motions" work over the courtroom battles except when it came to arguing the law. I've had my turn with capital cases. Eventually, I came to specialize in noncapital appeals only. My experience in the trial court assists my appellate practice. I see both sides. I strive to let the trial attorney know that he or she is on the same side as I am -- to benefit the interests of the client. When I don't get that treatment in return -- I'm ready to go to war! Otherwise, the Attorney General knows s/he has already won when defendant's trial and appellate counsel are at odds. I never want to give them that edge.

STEREOTYPES

Both trial and appellate lawyers stereotype the other to one degree or another. Stereotypes, of course, contain both a bit of truth and a bit of bias. Both trial and appellate counsel would be well advised to recognize the bits of truth in the stereotypes of them held by the other and the bias and unfairness in their own stereotypic view of the other. The following are some of the commonly stereotypes:

What Trial Lawyers Think of Appellate Lawyers

  • Social mutants who think you can have a meaningful personal relationship with a personal computer;
  • Hyper-technical, fuzzy-headed, library gnomes who have no grasp of the "real world" of criminal defense;
  • Have never tried a case and wouldn't know how, even if they could find the courthouse;
  • Think choosing a font is a tactical decision.

What Appellate Lawyers Think of Trial Lawyers

  • Pathologically extroverted hot-dogging cowboys (and girls) who shoot from the hip: "Ready, fire, aim!!"
  • Have no regard for the record they are making (or, more accurately, not making);
  • Last time they read an entire Supreme Court decision was – never!
  • Don't even know that the Rules of Court dictate that the font to use, including footnotes, may not be smaller than 13-point Times New Roman (Cal. Rules of Court, rules 15(d)(1), 37(b));
  • Think wardrobe selection and plastic versus paper are tactical decisions.


INITIAL CONTACT

The impressions made and tone set during the initial contact between trial and appellate counsel may well define or at least color the relationship to either the benefit or detriment of the client. Both sides, in my experience, need to work on improving their communications. The initial contact is the place to start.

Advice to Appellate Lawyers

  • Personal Contact

When you first get the appeal, write a letter to trial counsel introducing yourself. Tell trial counsel that you just got the case, haven't read the record, when you plan to finish doing so and when you plan to call to talk about the case. When you call, trial counsel will have had time to remember the trial, and not feel blind sided. No one enjoys answering the telephone and being barraged with lots of questions about something that happened months ago.

If you are in the same area as trial counsel, ask to meet at trial counsel's office to discuss the case and look at the trial file if at all feasible. Better yet, have lunch together or grab a beer together after work. If a personal meeting is not feasible, talk on the phone. Remember, trial lawyers spend a lot of time in court. Try calling around lunch time or 4:30 p.m. Initial contact by letter should be reserved until at least three honest attempts at personal contact have been rebuffed.

  • Ask for Help

Tell me about the client. Tell me about the trial. What issues do you think I should consider?" Remember, both appellate and trial counsel want the best result for the client. Most of us are in this for the money, . . . no, no, no, . . . because we are helpful people. Ask for help.

  • Do Not Accuse!

Conclusion jumping is like bungee jumping without the bungee; you will go "Splat!" Besides, you don't know squat about a case from just looking at the normal appellate record. And you wouldn't make any other decision in life based on a client's account of the trial so why would you accuse a colleague of professional negligence or incompetence based solely on what a client recounts or what isn't obvious from the record.

  • Find Out First!

You will have lots of time to cast stones if stone casting is indeed called for. I am reminded of a penalty phase where none of defendant's family members were called. No one would know from the appellate record that there was a darn good reason -- defendant had raped his own sister -- twice.

Appellate lawyers – what you don't know from the appellate record could chill your bones! So ask trial counsel:

  • What the police reports and other discovery have to say.
  • What the client told trial counsel.
  • How the client and other possible defense witnesses look and speak.
  • What trial counsel did (or didn't do) in preparation for trial, including what investigation and testing was done by trial counsel and the results.
  • Was there anything unusual that happened during the handling of the case?
  • What else would be important for you to know about the case?

Wouldn't you like to know those things before you make a judgment call on the job trial counsel did?

Ask to look at the trial file. Yes, you have a right to demand it, but don't brandish this broadsword unless you really need to. Ask for copies of what you need unless you have a really good reason for needing the originals. Even though you are entitled to the entire original file, don't ask to take it unless you really think you need it. Trial counsel, and large PD offices in particular, are possessive about "their" records and would rather hold on to them. Besides, if the case is reversed and remanded for retrial, they don't want to be without the file from the first trial. In case of reversal and remand, offer the appellate record, especially the reporter's transcript, for use at retrial with an agreement that the record will be delivered to the client or next appellate counsel after the retrial.

And a final word: please send a courtesy copy of your brief to trial counsel! Personally addressed. A personal note is a nice touch, too.

Advice to Trial Lawyers

  • Initial Contact

You folks regularly march valiantly into the Valley of the Shadow of Death. So quit being scardie-cats and cry babies -- return calls and letters from appellate counsel, even the socially challenged ones. This is part of your job, part of your obligation to the client and just good manners; even if you are SURE appellate counsel is gunning for you on IAC grounds. I have it on very good authority that no criminal defense attorney has ever been sanctioned more harshly than a "be more careful next time" letter from the State Bar and won't be for a simple mistake of the IAC kind -- even if it results in reversal -- even if it's a published opinion. Shenanigans with your trust account will get you disbarred; making a mistake in trying a case won't

Offer to meet with appellate counsel and let them look at your file and make copies of what ever they want. Buy ‘em a beer and talk over the case. This is a clever disarming tactic. Besides, you have an obligation to turn over the client's file to the next attorney. (See Cal. Rules of Prof. Conduct, rule 3-700(D)(1); Cal. St. Bar Ethics Opn. 1994-134 and authorities cited therein, especially at fn. 5.) Talk about the case. Don't get defensive and don't take it personally. Remember, you both have a common goal -- justice for the client.

  • Ask for Feedback

The appellate lawyer has read your every uttered word, guessed at your strategies, and been awed when you have zapped a seemingly iron-clad witness with brilliant cross-examination. But the appellate lawyer has also heaved with disappointment when you omitted an essential ground for your otherwise so superb objection. Ask for feedback from this person who has paid closer attention and scrutinized your words more than most of your trial lawyer colleagues. You might learn something useful for your next trial. You will definitely promote a cooperative relationship with the appellate lawyer who really doesn't want to use IAC against you -- it hardly ever works!

  • Do Not Assume

Do not assume the appellate lawyer has never tried a case, couldn't find the courthouse, etc. Appreciate that not everyone has the same talents or strengths. You may find (if you can find) the appellate courtroom is a very frightening place. You may find yourself surprised at the courage it takes to juggle rapid-fire questions from an entire bench full of black robes and mental agility it takes to turn an appellate justice's legal question into a convincing and persuasive argument that compels the appellate court under the law to send the case back to you for a new trial.

 

DISCLAIMER

This little article is a work-in-progress -- much like the relationship between trial and appellate counsel. But with persistence, patience, willingness to communicate and listen with good humor and honest attention, we believe that this relationship will only improve to achieve the actual goal -- to afford the best representation possible to the indigent criminal defendant who then unfortunately becomes the indigent criminal appellant.

Trial & appellate lawyers -- we solicit and invite your constructive criticism. Please write or email us and we'll see 'ya next time -- working for the mutual client.

Gary R. Nichols & Madeline McDowell

 

BACK TO TOP