Few lawsuits are resolved on their merits – whether before a judge, an arbitrator or an administrative decision-maker (most are settled). Even fewer go to an appeal or judicial review. When that does happen, the already high litigation stakes become even higher. Not only will the decision affect the parties, it will affect future disputes as well. This article explores some of the key differences between trials and appeals, with a view to identifying the considerations that should affect the choice of appeal counsel.

Many features distinguish trials and appeals. Some of the more notable flow from the different functions and structures of trial and appeal courts.

  • Trials create factual records; appeals interpret those records.
  • Trials occur in real time; appeals occur in compressed time.
  • Commercial trials are usually decided by one judge; appeals are decided by three to nine judges.
  • Each court that hears appeals or judicial review applications has unique procedural rules; small variations in those rules can have significant implications for appeal strategy.
  • The nature, importance and focus of the written and oral advocacy skills required on appeal and judicial review differ significantly from those required at trial.

Given these differences, several key considerations (other than the familiarity of existing counsel with the file) should influence the selection of appeal counsel:

How Experienced Is Counsel With the Appeal Court?

In a trial, the credibility of witnesses is most important; in an appeal, the credibility of counsel is important. Appeal judges are concerned, not just with resolving the appeal, but with the precedent that will set for similar cases. The judges are concerned with the development of the law as a whole and with how their decision will fit within the overall framework of the law. They rely on appeal counsel for assistance in addressing those issues. Through frequent appearances in the appeal courts, counsel become familiar with these concerns and gain insight into the arguments that maximize an appeal’s prospects of success.

How Experienced Is Counsel With the Appeal Procedure?

  • Appeals and judicial reviews are governed by procedural rules and deadlines that differ significantly from those governing trials. The link between procedural and substantive success is crucial.
  • Is there a right of appeal, or must leave be obtained from the appeal court?
  • If leave is needed, when should it be sought and how?
  • Is a stay of proceedings or security for costs needed?
  • Should the appeal be heard by three judges or more?
  • What material should form part of the appeal record?
  • What are the implications of the form of the trial order?

Appeal counsel are familiar with these procedural issues, and the options available to protect your interests in an appeal. Equally important, they are well-versed in the substantive legal issues peculiar to appeals and reviews, such as how much deference the appeal judges should show to the trial judge’s decision.

How Will Counsel’s Presentation of the Case Differ on Appeal?

No matter how well or badly a case went at the trial, simply recycling the trial arguments and authorities is a recipe for failure in an appeal. Effective appeal counsel develop and deploy different skills than trial counsel. In an appeal, the court record is fixed, so counsel’s focus shifts from gathering facts and evidence to mastering that record, researching relevant legal principles, reformulating the issues with an eye to the result sought, appreciating emerging legal trends and policy considerations, and developing creative analogies.

Appeal courts impose strict page and time limits on written and oral arguments. Concise, logical and persuasive written and oral advocacy is crucial in appeals.

Written and oral submissions receive greater judicial scrutiny in appeals than trials. A panel of three to nine judges (and their law clerks) read appeal arguments, and have comparatively more time in which to review them before the appeal hearing.

Finally, oral argument in appeals, before a panel of several judges, has no counterpart at trial.

How Will Counsel Bring Fresh Perspective to the Appeal?

The appeal and review processes brutally narrow any dispute. Issues that took days or weeks to argue at trial will usually be given only hours in an appeal. If things went poorly at trial, only an objective review of the factual record and legal issues will reveal why, and what can be done to prevent a recurrence. If things went well, what were the key ingredients of success and how can they best be showcased on appeal?

Although retaining new counsel for an appeal or review can lead to some extra costs, there are many off-setting advantages. The main argument for trial counsel arguing an appeal is their familiarity with the factual record. But that may also be a liability. New appeal counsel are able to assess the case from the same perspective as the appeal judges – through an impartial review of the record and the legal issues, rather than through information and impressions formed during pretrial discovery and at trial. Appeal counsel’s fresh perspective thus provides a realistic evaluation of the merits of an appeal. The value of new appeal counsel is particularly high in cases where the conduct or strategic decisions of trial counsel is in issue in the appeal – appeal judges have noted the impropriety of trial counsel personally defending an appeal that turns on their own trial conduct.

If appeal counsel is to be retained, the timing of that will depend on the nature of your case. If an appeal from the eventual decision appears inevitable (because complex legal or factual issues are involved, the stakes are sufficiently high or issues of broad public importance are in play), appeal counsel should be retained as early as possible in the pretrial process, to collaborate with trial counsel on strategic and tactical matters, to raise all applicable arguments and to build an appropriate record, so that your position is protected in an appeal.

At a minimum, appeal counsel should be retained immediately after the trial decision is made, before a formal court order is entered. An appeal is from the formal order, not the reasons for judgment, and the terms of the order may heavily influence the relief available in an appeal.

Additionally, the timelines for bringing an appeal are typically fairly short, so retaining appeal counsel immediately after trial decision is made will ensure your rights and remedies are preserved pending further consideration of the merits of an appeal.