When Recycling is not Cool
At one time or another, all lawyers run into somebody questioning the value of the services the profession provides. And some measure of that is probably healthy. A wrinkle that appellate lawyers get goes like this: "Well, you won't have to do much. All the work has already been done by the trial lawyers."
Tell me if you've heard that one before. I have. And so too, have justices of the courts of appeal. One of the best answers to that contention was made by Fourth District Presiding Justice, David Sills. Here is his response:
"Appellate work is most assuredly not the recycling of trial level points and authorities." (In re the Marriage of Shaban (2001) 88 Cal.App.4th 398, 408.)
I like that. But in case a client needs further convincing, Justice Sills discusses how appellate briefs receive greater judicial scrutiny by multiple justices with more time to devote to briefs than their trial court brethren. The absence of horizontal stare decisis among the intermediate appellate courts of the state is another critical difference. As Justice Sills explains, precedent among California's courts of appeal is open for reexamination and further analysis by panels of those courts. And appellate lawyers must consider the impacts the appellate decision could have going forward.
Perhaps this quote says it best:
"The upshot . . . is that appellate practice entails rigorous original work in its own right." (In re the Marriage of Shaban, supra, 88 Cal.App.4th at p. 410.)
Couldn't have said it better.
