Everyday Differences Between Appellate & Trial Level

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Everyday Differences Between Appellate & Trial Level

Postby hangnail » Thu Jan 23, 2014 10:37 pm

What's the difference between working at the appellate level and working at the trial level (both on the judge/clerk side and on the attorney side)? Is the due diligence different? More research? etc? Are there any skills emphasized at one more than the other?

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A. Nony Mouse
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Re: Everyday Differences Between Appellate & Trial Level

Postby A. Nony Mouse » Thu Jan 23, 2014 11:10 pm

This is sort of a huge question. A huge generalization is that appellate work is much more independent/isolated and not as fast-paced. On the practice side, appellate work is much more research- and writing-intensive and much more independent - you sit in your office and work from the record, do research, write, and occasionally do an oral argument. An appellate lawyer said to me once, "Appellate lawyers don't get out much." Trial work involves working with other people much more (you don't have any real contact with opposing appellate counsel the way you do with trial counsel), and is more fact-intensive. I mean, you have to know the record in appellate work, but the facts you can address are what's in the record - they've already been chosen for you, you can't add more. At the trial level you're looking for facts to use. Trial work can involve a lot of research and writing, especially in civil litigation, which is dominated by motions practice, but it's a different kind of research and writing. Criminal trial work tends not to have the same kind of motions practice as in civil, but involves working regularly with agents/law enforcement/victims (even if you don't get to trial). I mean, there are motions, they're just very different kinds of things (more about what evidence can be used/excluded than about saying, there's no cause of action here to begin with).

On the clerk side, both involve a lot of research and writing (if you're talking federal court - I'm not sure how much writing there is at the state trial level). In both, you're mostly sitting and your computer writing stuff. The difference is that at the trial level, you deal with trials, but they're not a constant - how often you have a trial going varies a lot, but you can go weeks without a trial. (Again, leaving aside state trial court, which I think is much busier.) So you have a bit more interaction with people, especially non-chambers people, as a trial-level clerk than as an appellate clerk.

I have no idea what the difference is for judges.

I think one generalization about skills is that appellate work requires really excellent, intensive writing and research skills. That's not to say that trial work doesn't require good research and writing skills, just that it's especially the case for appellate work. (Appellate work also generally requires an appellate clerkship.) The stereotypical trial lawyer charisma that sways juries is helpful in trial work, and you have to be able to make yourself understood by/appealing to juries, but if you don't have good trial strategy all the charisma in the world isn't going to help you. And if you go into biglaw/complex civil lit, you're very very rarely going to be before a jury. (Conversely, if you go be an ADA you'll spend all your time in court and writing will be a distant memory.)

This is really rambling because it's hard to generalize about trial-level work - it depends too much on what kind of employer you work for.

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Re: Everyday Differences Between Appellate & Trial Level

Postby TooOld4This » Thu Jan 23, 2014 11:24 pm

Go on to Pacer and look at the docket of a District Court case and a Court of Appeals case and read the documents. This will give you a bit of a flavor of the difference. The thing that is not captured is that only a small portion of trial work actually makes it on to the docket. Entire chunks of discovery will occur beneath the radar of the court docket -- they only pop up when the parties have gotten themselves in such a state that they have to go complain to the judge.

Trials themselves are a small (and relatively rare) part of trial level work. Most of the work is motions practice, discovery, and theory development.

In appellate work, you are dealing with the cold record. Things get decided on issues of waiver, process, and jurisdiction regularly and the merits are often not addressed. There is relatively little need to work with outside parties in appellate work. With trial work you have conferences, depositions, hearings, discovery of all sorts. Appellate work is much more the exchanging of briefing and oral argument (but not always -- decisions can be issued on the briefing alone).

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