Philipson Legal
An Appellate Boutique

Why hire a specialist?

Appellate litigation calls for special skills

Just as a trial attorney is comfortable gathering facts to present to a judge or jury, an appellate litigator is at home researching and writing arguments to present to a panel of judges. Although any attorney admitted to practice in the Massachusetts state courts (or admitted to the Massachusetts federal courts) may appear in either the trial or appellate court, the competence that comes from repeated appearances in one court do not necessarily translate to the other. The reason is that the work of trial counsel differs fundamentally from that of appellate counsel. 

The advantages of appellate expertise before and during trial

Trial lawyers are concerned primarily with assembling and presenting evidence to prove or defend legal claims. In a typical case, a trial attorney spends months or years focusing on discovery, trial preparation, and, finally, presenting testimony and other evidence to a judge or jury to decide the facts. There are, of course, occasions when legal research and writing take center stage in the trial court—as with motions to dismiss or for summary judgment, or motions to introduce or keep out evidence. But the regular diet of the trial attorney is not in-depth research and writing, as it is for the appellate practitioner. Thus, an appellate attorney can complement the efforts of trial counsel—for example, by researching discrete evidentiary or jury-charge issues, or by drafting motions or oppositions that trial counsel may not have the time or inclination to do himself or herself. In addition, appellate practitioners always have an eye toward a potential appeal, allowing them to help trial attorneys properly preserve issues for appellate review. 

The advantages of appellate expertise after judgment

When litigation runs the full course to a final judgment, a party adversely affected may be able to obtain relief through a postjudgment motion or an appeal. Yet, whether the cost of additional litigation makes sense, and how this litigation should proceed, are questions best answered by an attorney with a fresh, objective view of the case. Trial counsel can have difficulty adopting this view; it is easy for him or her to lose sight of the forest for the trees, having lived with the case for months or years. And a trial attorney can become wedded to theories or arguments that were, in reality, properly rejected at trial. The attorney can mistakenly believe that something important to the trial judge or jury—who were more concerned with the result in the particular case than the development of the law generally—will be important to a panel of appellate judges. Moreover, trial counsel or the client can become fixated on addressing every disappointment felt during the litigation. These preoccupations can cloud an attorney's view of the case—whether he or she is on the winning or losing side—interfering with the attorney's ability to present the most effective arguments in a posttrial motion or on appeal.  

Through independent representation of a client, or in collaboration with trial counsel, an appellate specialist can provide the detached perspective necessary to assess whether and how to pursue postjudgment litigation. If that litigation is an appeal rather than a posttrial motion before the trial judge, the appellate practitioner will have the same objective perspective as the appellate court. 

The Philipson Legal difference

The heart of any appeal is the brief. When an appeal suffers from weaknesses in the selection and presentation of arguments, the court becomes frustrated, diminishing the likelihood of success for the client. Philipson Legal writes logically-organized briefs that explain the pertinent facts and law, while sparing the court irritating distractions

The road to success for appellants is a steep one. The Supreme Judicial Court and the Appeals Court affirm trial-court decisions about 80% of the time; reverse about 15% of the time; and issue other decisions (e.g., affirming in part, and reversing in part) 5% of the time. Because of those odds, a prospective appellant is well advised to seek expert advice about his or her chances of success on appeal before launching one. The numbers also show that there is no room for complacency by an appellee whose victory in the trial court the other side may challenge on appeal. 

Philipson Legal specializes in appellate and related services. Offering significant experience in appellate advocacy with the added perspective of a former advisor to the Justices of the Supreme Judicial Court, the firm provides you a strategic advantage—whether as an appellant or appellee—over the litigant whose counsel lacks this expertise.  
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