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Why Do We Have Appellate Lawyers?

Suppose you were abducted by aliens.

And before you were probed, they asked you to explain what it is that you do and why. If you are an appellate lawyer, how would you explain your job? Why does your job exist and why can't just any old lawyer just do it?

I had to do something similar last week. They weren't extraterrestrials, and I wasn't probed. But they didn't speak my language and they came from a society that has very little in common with our own.

Here at Andrews Kurth, we had a visiting delegation of judges from China. And my mission, whether I chose to accept it or not. was to create a presentation on American Appellate Practice--a presentation for translation, one sentence at a time, to an audience that does not speak English or even a language from which English derives.

 A few deep thoughts about appellate lawyers' Raison d'être-----in English.

I think I've written before that my definition of an appellate lawyer is a lawyer who persuades judges about the law, as opposed to a trial lawyer, whose ultimate job is to talk to juries about the facts.

OK, but so what? Why do you need two different lawyers for these two different jobs? As I tried to answer that question for the visiting Chinese judges, I was surprised that the answer eventually boiled down to the constitutional right to a jury trial.

Where the right applies, there are certain things the court is completely barred from deciding.

  • Was the traffic light green or was it red?
  • Which witness is telling the truth?
  • Was the defendant speeding?

These questions are likely to be different in every case. The questions from the Chinese judges expressed some level of surprise and curiosity that our appellate courts are not supposed to retry or revisit these kinds of facts--that their power was limited.

On the other hand, there are other things that juries are completely barred from deciding.

  • What does the statute mean?
  • Is the testimony hearsay or not?
  • Is the contract unambiguous? And if so, what does it require?

On these kinds of questions, you don't want the answer to change depending on the trial lawyer's hair style or who gets seated in the jury box. They should be the same in every case.

Sure, there are less simple examples where the parties will differ on which side of the line an issue falls. But this hard division and the nature of modern litigation have created the need for specialty lawyers.

For trial lawyers:

  • Modern e-discovery and mega-document cases call out for lawyers skilled in finding and organizing a mountain of facts.
  • Modern news programs, court room dramas and the computer screens in every home have created jurors who expect multi-media presentation of the facts and lawyers who can give it to them.

On the other hand:

  • The sheer crush of new and complex laws and regulations prevent even the most gifted lawyer from being a jack of all trades.
  • Complex legal reasoning is best suited to written (rather than oral) presentation. Very often, those who are good at one are not as strong at the other.
  • The crush of modern dockets prevent courts (at least the good ones) from just carrying a legal question to trial and hoping to figure it out when the golden-throated-lead-trial-lawyer will bring his personality and aura to bear. 

All this from our constitutional structure that gives different kinds of decisions to different decision makers.

And so, on the eighth day, God created appellate lawyers.

The the Lord saw that it was very good.

Copyright © 2023, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume I, Number 229

About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...