The feeling to an appellate lawyer is a lot like the feeling to a trial lawyer when the prosecutor hands over the statement. When you ask the defendant if he talked to the cops, he swears he didn’t. Then you take a peek at the statement, in his handwriting, signed, saying he did it plus kidnapped the Lindbergh baby. Fuck.
You look at the defendant. His face turns downward, he looks at his shoes. Your brilliant defense, that trial you could beat, just crashed through the floor. Not because the cops got the goods, but because the defendant couldn’t not talk. It wasn’t murder. It was suicide. He killed his defense.
The appellate lawyer reads the transcript, and his antenna goes up. the hair on his arms reaches for the sky. He starts to tingle, because he feels it coming before the words on the page say so. There it is, the smoking-gun error of law, the mistake that can’t be deemed harmless and wiped away with the sweep of a robed arm. There it is, the swan dive into reversal that ends with . . . fuck. No fully formed legal argument; no objection. Waived.
To be clear, I’m not saying “only appellate lawyers can avoid waiver” or “waiver is never a problem for appellate lawyers.” Waiver is sneaky. Really sneaky. Even the best lawyers (including the best appellate lawyers) will occasionally get stung by a sneaky waiver problem.
But appellate lawyers are, by design, specially attuned to waiver problems—because waiver is always a threat to every issue on appeal. So, if you want to avoid waiver problems—and you do, you really, really do—you should consider hiring an appellate lawyer. And not just for the appeal. You should consider hiring an appellate lawyer way, way, way before the appeal. You’ll see what I mean, if you keep reading.
Sure, Jason Steed is making a pitch on behalf of appellate lawyers, which, as an appellate lawyer, will inure to his benefit, but that doesn’t mean he’s wrong. As Andrew Fleischman twitted:
As an appellate public defender, I can honestly say that I have 99 problems. All of them are waiver.
So retain appellate counsel up front and problem solved? Well, sure, with some caveats. The first and most obvious being that lawyers cost money. People are funny about that. Defendants aren’t nearly as thrilled as one might suspect about having to pay for a lawyer to defend them in the first place, and that’s the lawyer who is actually conducting the defense.
To ask for the retention of yet another lawyer, whose role isn’t to defend them at this stage of the proceedings, but to be there for when they lose, may be asking a bit too much. There’s the money issue, and then there’s the anticipation-of-losing issue. If your trial lawyer wants to have appellate counsel by his side, it instills a certain lack of faith that tends to put clients off. It’s not a strong selling point for trial counsel.
But then there’s the difference in focus. Trial lawyers want to win at trial, and it’s not merely ego (though ego certainly plays a role). That’s the stage at which defendants are entitled to the presumption of innocence, where the burden is on the prosecution to prove guilt beyond a reasonable doubt (whatever that means). On appeal, the burdens flip. No longer is it a matter of getting knocked off the top of the innocence hill, but a matter of fighting one’s way from the bottom of the hill back up to the top. It’s far harder. Suddenly, the defendant has a burden to meet, standards for review and reversal.
So isn’t this why it would be great to have appellate counsel sitting next to you? Well, yes, but not quite. There are different choices to make at trial, risks to take, tactics to employ, because you want to win when you have the best possible chance, when you’re still on top of the hill rather than cosplaying Sisyphus.
There are times when objectionable questions are asked, arguments made, but you make the tactical decision not to object so as not to convey to a jury that you fear the answer, or are trying to obstruct the prosecution. To the appellate lawyer, this may be heresy, but then, he’s assuming a losing verdict while the trial lawyer is trying to win. If it sounds more than a bit like game-playing, it is. The objective is to persuade the jury to buy your narrative rather than the other guy’s. The jury isn’t nearly as concerned with the rules of evidence as are lawyers or appellate judges.
Then there is the real-time nature of a trial, as opposed to the leisurely pace of reading a transcript afterward. In retrospect, particularly after a one-word verdict, choices become clear, if not brutally obvious. In real time, however, there are snap decisions to be made. If you’ve never tried a case, you may be unable to appreciate that the lawyer has a fraction of a second to decide whether to leap to his feet and shout objection, both because something objectionable occurred and because it’s the tactically wise move to make.
Good trial lawyers can do this, but even so, they may occasionally get it wrong. What they cannot do is have a conference between counsel to discuss, hash out the pluses and minuses, and achieve consensus, all in the midst of testimony or argument. Trials don’t get put on hold whenever someone raises their hand and says, “ahem, your honor, we would like to take a few minutes to ponder what best to do at this moment.”
Finally, there is the reality in the courtroom that never appears in the trial transcript. The arched eyebrow of the judge that says, “if you object again, I’m going to humiliate you in front of this jury until they despise you even more than your client.” Or the bench conference where the judge asks what’s going to happen, gives a ruling, even though it can’t be a ruling since it isn’t on the record, but does it anyway. That’s the part in the transcript where the appellate lawyer can’t quite figure out why the judge is beating counsel up over a ruling that appears nowhere. Or just the judge cutting off argument before one gets to actually speaking the words that need to be said to preserve the point. Try telling the judge you’re going to just keep arguing (particularly with the jury present) when he says, “Enough. Denied. Move on, counselor.”
Trials are comprised of a million snap decisions, and some of them could be made better, and more effectively, with the help of appellate counsel. When that happens, the impact on appeal is huge, as the failure to preserve an argument is the darling of the appellate bench. Steed does not exaggerate the problem of waiver in the slightest, but the solution of having appellate counsel on the team isn’t quite as simple a fix as it might seem on appeal.