Why family court attorneys should know how to do appeals

Posted Tuesday, July 6th, 2010 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

There are approximately a half dozen family law attorneys in the Charleston, South Carolina area whom I consider extremely underrated.   Typically their hourly rate is in the $200 to $250 range but their work strikes me as equal, and sometimes superior, to attorneys who bill in the $300 to $400 per hour range.  What almost all of these underrated attorneys have in common is that they handle their own appeals.  It is my belief that one cannot be a superior family law advocate unless one can handle both trial level work and appellate work.

There are three reasons any trial court level attorney should be able to handle appeals in the areas in which that attorney practices.  The first, and most obvious reason, is that handling appeals requires an attorney to become and remain familiar with changes in the relevant statutory and case law.  Attorneys who handle their own appeals are, in my experience, rarely surprised by recent changes in statutory law, or unaware of recent appellate court decisions that impact their cases.

The second reason that family court attorneys should gain some experience in handling appeals of their own cases is that it forces an attorney to focus on error preservation issues.  See Error Preservation for Appeal.  A sizable portion of family court appellate opinions have one or more issues that the appellate court refused to consider because the issue wasn’t properly preserved for appeal.  It is my experience that trial attorneys who have never handled an appeal (or haven’t handled one recently) often fail to do things that are required to preserve issues for appeal: stating the basis for an objection to evidence if the objection is overruled; failing to proffer improperly excluded evidence and explaining the reason the excluded evidence is admissible; failing to consider what issues should be raised at trial to obtain the requested relief; failing to seek reconsideration of issues that were raised but not ruled upon in the final order.  While even experienced appellate attorneys are imperfect on error preservation issues, they tend to be much better at error preservation than attorneys who do not handle appeals.  Further attorneys who handle appeals know that a trial is often a first step, and not the final step.  Therefore they are cognizant of the need to create an evidentiary record at trial that would allow an appellate court to affirm any victory they achieve.

This tendency to fail to understand error preservation issues actually affects my negotiation posture with opposing attorneys.  If I know the other attorney will try a case in which he or she preserves error and makes a record, I have a greater expectation that opposing counsel will be able to preserve any “victory” on appeal, and a lessened expectation of being able to reverse results on appeal merely because the other attorney failed to make an adequate record.  Further, any victory I achieve is much more likely to be reversed on appeal if the lower court commits error because that attorney will be in a position to ensure that such error has been preserved so that it can be raised on appeal.  Thus, the less likely opposing counsel is to be able to handle an appeal of the case, the more aggressive the position I am comfortable taking in settlement negotiations.

The final reason that attorneys should know how to appeal their own cases is that it subtly alters how they try cases.  An attorney who never handles an appeal approaches trial thinking, “how do I get the family court judge to rule in my client’s favor.”  The attorney who handles appeals approaches trial thinking, “what evidence and legal issues will I need to establish at trial so that the family court judge will grant my client the relief he or she seeks.” This distinction, though subtle, is vital.  The trial attorney who handles appeals approaches trial by first understanding the legal principles that need to be established in order to have the client achieve his or her goals.  That attorney will then decide what evidence can be marshaled to support these legal principles.  If there is minimal evidence to support a particular goal, that goal can be eliminated, or the focus upon it diminished, or, if that goal remains vital the client, counsel can seek to obtain additional evidence to help achieve that goal.  Such attorneys can further highlight areas in which the client is likely to achieve his or her goals in order to make that client appear “reasonable.”  In contrast, the trial attorney who does not handle appeals is more prone to simply “put up” whatever evidence he or she can and then hope for the best.

Because attorneys who handle appeals think about these legal and factual issues before trial, rather than after trial, the process of handling an appeal also becomes easier as the basic skeleton of an appeal brief–the facts that need to be established; the legal principles at issue–have already been outlined.

Other than two issues–the deadlines for serving a notice of appeal and for filing a petition for rehearing–the appellate courts are very accommodating.  They will routinely grant extension requests (it will cost $25.00 for each such request) and will inform appellate counsel of any errors in paperwork that need to be corrected.  The appellate court rules even contain a handy flow chart detailing the appellate process.

The ability to properly handle an appeal is an essential skill for any family law attorney who wishes to become a consummate advocate.  I urge my colleagues and the attorneys I mentor to handle at least one of their appeals rather than sending them off to attorneys who specialize in appellate work.