Waiving Good-Bye

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.

31 comments on “Waiving Good-Bye

    1. SHG Post author

      In fairness, there is one dimension left out: some trial lawyers suck, blow it, screw up and just plain fail for lack of an adequate knowledge of law.

      1. Scott Jacobs

        At least then there’s a chance (however slim) for a claim of ineffective assistance of counsel.

        1. SHG Post author

          That’s really not what you want to hang a person’s life on. The thread is way too slim.

  1. Richard Kopf

    SHG,

    A very important post.

    One can, as many an appellate CDL do, hate the Strictland standard holding that trial counsel can never be said to be Constitutionally ineffective unless: (1) Counsel’s performance fell below an objective standard of reasonableness and (2) Counsel’s performance gives rise to a reasonable probability that if counsel had performed adequately, the result would have been different.

    Hate Strictland all you want, but it is, at least in part, premised on legal realism. Lawyers who actually try criminal cases are under immense pressure to make tactical and strategic decisions with little or no time to reflect upon the decision. At least in my imagination, It is much like surgery in a MASH unit. Fair-minded trial judges do their best to level what is by definition an uncertain and unknowable terrain. But in the end, the burden falls upon the CDL.

    In my experience, the truly effective appellate criminal defense lawyers are those who spent a decade or more actually trying criminal cases to juries. Without that experience, to this old bastard, any criminal appellate lawyer who complains about waiver has little or no credibility. They are very similar to law professors who claim to be trial lawyers because they have signed appellate briefs. The word poseur comes to mind.

    All the best.

    RGK

    PS The idea of hiring an appellate lawyer to sit in, but not participate in the trial, so as to be able to argue an appeal, is a laughable pipe dream in the vast majority of criminal cases. By the way, if you want to get your client convicted, the CDL should make every conceivable objection he or she can thus simultaneously dooming the client yet “protecting” the record. It helps to sneer too. Juries just love to have the story interrupted by a whiner in a brilliantly white shirt and red power tie. (To be clear, none of this vitriol is directed at Andrew or Mr. Steed.)

    1. SHG Post author

      I’m not sure any of us are as pure as Caesar’s wife, Judge. Years ago, I argued for a trial order of dismissal and got a point of law completely backward. I mean, 180 degrees. A lawyer in the audience later grabbed me and informed me of my massive screw up. When we resumed, I argued for ineffective assistance of counsel, myself, conceding that my error was a complete and total blunder, with no tactical or strategic purpose whatsoever. Sheer, utter failure. The judge denied my motion. Strickland sucks.

      1. Richard Kopf

        SHG,

        That’s not the point. Sure trial lawyers, even great trial lawyers, screw up. And, of course, Strickland sucks from your point of view. (I heartily agree that there are a ton of shitty CDLs out there.) And trial judges, me especially, screw up. Can you imagine a federal judge being so stupid as to submit to a jury a count (in a multi-count indictment) that is not even a crime? I have, and recently.

        What is the point, then, Kopf? The point is that trials are inherently imperfect. We can’t reasonably expect anything close to perfection. Most of the time most offenders are guilty of what they have been charged with and most everyone including the defendant knows it. The best we can do is do our best sure in the knowledge that in the huge majority of cases our errors are ultimately meaningless even to the poor schmuck who did what the government said he did.

        All the best.

        RGK

            1. Cassius Dre

              Dear Judge Kopf,

              The next time SHG throws Lebowski at you, just say, “STFU Scotty!”

    2. Richard Weaver

      Occasionally you find yourself in a situation where all you can do is play for fumbles. You have no defense and the best you can do is give the prosecutor and judge the maximum number of opportunities to screw up. To that end, the best tactic may be to make every conceivable objection in the hope that something will resonate on appeal. And then hope that on remand the prosecutor will cut you a better deal to avoid having to retry the case. No one wants to retry a case.

      1. Richard Kopf

        Richard,

        I love fumbleroski trials! I can’t sleep through them like normal. All the best.RGK

    3. bacchys

      Strickland is based on institutional corruption and appellate judges being biased towards finality more than justice.

      One would be very hard-pressed to find an exoneration where there weren’t numerous failed appeals, yet a review of the record shows appellate judges misrepresenting that record, if not outright lying to support the conviction. One really pleasant one is Watkins v. State, where, during the post-conviction proceedings, the expert originally hired by the state but not used at trial because his findings didn’t support conviction testified that it was possible for the defendant to have made a specific cell phone call from a certain area if a fleet of helicopters trailing giant sheets of tin foil happened to be flying in just the right place at just the right time and at just the right angle…and the appellate court took from that the phone call was possible.

      Ours may be the best system in the world, but that doesn’t mean it’s any good.

    4. Andrew Fleischman

      Judge,

      I’ll admit that I often wish I had more trial experience when I’m handling a case. It’s tough to be a Monday morning quarterback. But the screwups that really cost my clients trials tend to happen well before the trial–when defense counsel fails to investigate something important, doesn’t talk to an expert, or tries to explain away something they could have excluded. Anything else, like failure to object to a dumb closing argument or a snippet of hearsay, tends to be both strategic and barely relevant to the course of the trial.

      I don’t know if this is an unpopular opinion, but I actually think the Strickland standard is pretty fair. Prejudice SHOULD be more difficult to prove after waiver, because otherwise good lawyers would best serve their clients by pretending to be bad ones. The standard isn’t impossible to meet in most state level cases, where investigations are short and pretty cursory. At the federal level, I’d imagine it’s a lot tougher.

      All the best,

      Andrew Fleischman

      1. SHG Post author

        Not to butt in here (even though I am), ask yourself why these things happen?

        when defense counsel fails to investigate something important, doesn’t talk to an expert, or tries to explain away something they could have excluded.

        You’re going to find they fall into two groups, though there’s overlap. Group one is the lazy/incompetent group, which by definition aren’t going to retain an appellate lawyer and, even if they would, wouldn’t be the best solution as they are the problem. Rather than an appellate lawyer, the defendant needs a different trial lawyer.

        Group two doesn’t have the money. Maybe because they charged for a quick plea and ended up going to trial. Maybe because they got stiffed. Maybe the underestimated the work involved. Whatevs. And they’re answer to insufficient money is insufficient work, whether in investigations, experts (only someone who has never had to pay out of pocket for an expert would raise experts lightly).

        As for your excluded prong, if they failed to move, then they fall into Group one. Unless the rationale is so legally nuanced and sophisticated the a good dumb trial lawyer couldn’t figure it out without the help of an appellate lawyer, what does an appellate lawyer add except another set of knowledgeable eyes? It’s all good, but it has to be seen in context and in reality. A lot of lawyers just plain suck.

        1. Andrew Fleischman

          I wish you weren’t right, but yes. The best solution would just be decent trial counsel.

      2. Richard Kopf

        Andrew,

        Great to hear from you.

        Regarding your last comment, you are right to distinguish between the federal system and the state systems. And that is not because the feds are better or smarter. It is mostly about money.

        At the federal level, I am blessed with federal public defenders who try cases and who do a superb job. Moreover, they have in-house appellate AFPDs to help them at trial and also on appeal. These lawyers are paid a federal wage equivalent to the wages earned by federal prosecutors.

        I am also blessed with Criminal Justice Act panel lawyers. Out here, our panel is almost populated with excellent lawyers as well. This is a testament to our Criminal Justice Act (CJA) panel selection committee that is comprised of one of our judges, the FPD, and the CJA panel representative who is a highly regarded private CDL appointed by the court.

        Then, too, CJA lawyers are ranked internally A, B, and C. “A” lawyers are eligible for all felonies and recognized for their excellence. “B” lawyers are somewhat less experienced but very good nonetheless. You might see them in, for example, illegal reentry cases where there is no defense and the object is to get a fast-track departure and “time served” sentence. Finally, “C” lawyers are novices who don’t get paid appointments but must tag along in two felony cases with an experienced CDL before they are considered for placement on the regular panel.

        Furthermore, while the pay for CJA counsel is hardly great (presently $132 per hour plus expenses plus expert fees and a waivable attorney fee cap of $10,300 in a non-capital case), the money is sufficient, at least out here in the sticks, to attract talented people.

        I don’t know if I could work as a judge in some state systems where the pay is a joke and where it might be a common occurrence to see a drunk or a dolt representing people in significant criminal cases. It is in such systems that Strictland can become an obscenity unless the trial judge puts his or her feet straight up the ass of the incompetent.

        All the best to you as well.

        RGK

  2. Raffi Melkonian

    This is good analysis. A short point in response: my role as appellate counsel is to make sure decisions not to object in the ways Scott points out are *decisions* and not careless mistakes. I get that trial counsel needs to do stuff to win. Some of those things indeed make my appellate hairs stand on end. But I’m not a trial lawyer, and winning is better than preserving an appeal. But with good forethought, even in the fog of trial, the most important things can be preserved (and maybe even won). It’s a delicate balance to be the appellate lawyer at trial. It is emphatically not your show. So you have to pick when and how to intervene & advise so that you have enough for the appeal if all goes badly, but to where you do not sacrifice the credibility the trial lawyer has earned with the judge and the jury.

    *slightly edited version of my twitter response.

    1. SHG Post author

      Absolutely correct. It’s a delicate balance, and what both trial and appellate counsel strive to accomplish is that choices, whether to object or not, what to argue or not, are both actual decisions and, I add, accurate decisions. We all share the goal of doing the right thing for the client, whatever that turns out to be.

  3. Jody Sanders

    I agree, it is a delicate balance. And, there are certainly differences between the feasibility of hiring appellate counsel pre-appeal in criminal v. civil. But, as appellate counsel at trial, we are sensitive to the split-second decisions that have to be made and the sacrifices of certain issues in the name of strategy. A lot of times, those issues aren’t necessarily the ones that would have turned the case around. On the other hand, we can bring a different view of technical issues like charge error and an outside perspective on making a clear record on an issue that sometimes gets overlooked. In addition to advanced myopia, one thing appellate lawyers get from reading transcripts is how things look in the record that might not be obvious at trial.

    1. SHG Post author

      As I do appeals as well as trials, I am very sensitive to making a record that reflects what might be needed for appeal, and through decades of experience have learned how to make the record I want without needlessly pissing off the judge or jury. What issues ultimately pan out on appeal isn’t necessarily obvious during trial; things look different afterward than they do as they’re happening, so it’s very appellate myopic to say that “a lot of times, those issues aren’t necessarily the ones that would have turned the case around.” You never know, and you never know what combination of a thousand choices might have made a difference.

      But the best understanding the delicate balance comes from understanding trials and appeals. It’s a shame that hyper-specialization has left too many lawyers focused only on their slice of the case.

      1. Jody Sanders

        True. And I wasn’t trying to say that in every case strategic decisions to let an issue go don’t matter. Obviously, it is different in every case. I guess the point I was trying to make was that appellate attorneys can bring a different perspective during a trial that might help preserve certain issues or identify other issues that might not be seen, all with the ultimate goal of doing the right thing for the client. I agree with you that having an understanding of both trying cases and doing appeals is the best approach. But, I think it is useful when possible to have appellate counsel available at an earlier stage in the proceedings to make sure that things don’t get overlooked.

  4. John Hawkinson

    Are there specialized kinds of cases where the calculus shifts and having an appellate attorney handy might be especially important, rather than a woeful pipe dream?

    And perhaps, it’s good to wonder how much benefit might come from having trial counsel talk over a specific case with potential appellate counsel before trial. What could they learn that they should not know already, I am not sure? And yet…

    1. SHG Post author

      Your question isn’t clear, John. Appellate counsel would be helpful in all cases, with the same caveats. Not sure what you mean by “specialized”? RICO? Financial crimes? Death cases? Fifty-deft conspiracies? Year-long trials? Sure. But good lawyering is needed for every trial, as the trial that’s most important to a deft is his.

      1. John Hawkinson

        It sounds like your answer is perhaps “No,” but I meant specific statutes or areas of law. But I worded the question broadly to avoid falling into traps.

        Counterexample: a lot of qualified immunity cases seem to get resolved at the circuit level (probably because of the interlocutory appeal provision?), but they don’t seem to turn on preservation of objections below. So…not them?

        It’s easy to imagine financial crime defendants have more cash for appellate lawyering and maybe a better client appreciation of risks and outcomes.

        I suppose another category is also “areas where the Supreme Court has recently upset things, but has somehow managed not to resolve exactly all the details for those on the ground.”

        1. SHG Post author

          I sense that in trying to frame a tighter question, you found the answer. Waiver can happen in any case, and each case requires both good lawyering and an appreciation of tactical choices. The answer is always “it depends,” and trying to identify pigeonholes where it matters more misapprehends the nature of law and litigation. It’s just not easily fit into a binary paradigm.

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