After trial, it may seem like common sense to retain the same attorney to bring or defend the appeal. After all, that attorney already knows everything about the case, right?

Yes, but that in itself can be the biggest pitfall to success on appeal. An appellate attorney will offer a fresh perspective, free of the bias that necessarily gradually influences the attorney handling the case at the trial court level.

An appellate attorney also has greater familiarity with the applicable standard of review and evidentiary standard on appeal, which is where appeals are won or lost. The skills required for an effective trial attorney versus an effective appellate attorney are not the same. After all, you would not go to a podiatrist to have heart surgery, even though both are “doctors.”

Here’s what the courts and commentators have to say:

“We also observe that trial attorneys who prosecute their own appeals, such as appellant, may have “tunnel vision.” Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-50.)

“Trial lawyers seldom appear in appellate courts and are probably less effective there than are appellate lawyers.Trial lawyers are good at presenting concrete details in a straight-talking and compelling way that dramatically captures the attention of a jury in a trial court . . . . They are less skilled, however, at the subtle arguments that judges seem to appreciate in appeals court . . . . ” James M. Dabbs, Jr., Elizabeth Carriere Alford and Julie A. Fielden, "Trial Lawyers and Testosterone: Blue-Collar Talent in a White-Collar World," 28 Journal of Applied Social Psychology (1998) 84, 91.