Preliminary Decision: Who Will Argue?
Send up the skilled advocate most knowledgeable about the case.
A client will sometimes press to have a big name lawyers argue the case. Resist that pressure. Explain that the client best stands to win if the lawyer most familiar with the case (and, of course, skilled in oral advocacy) does the job. Every judge is familiar with the embarrassing and distracting spectacle of a senior lawyer at the rostrum butchering an appeal while a capable junior sitting at counsel table, more knowledge able on the facts and law of the case, writhes in discomfort. The client may think the senior partner is doing a fine job, but the court knows better. And though the firm may please its client for the day by having its Big Name appear, over the long run that practice will cause the firm to lose more cases … and clients.
In selecting counsel to argue an appeal, bear in mind that appellate advocacy and trial advocacy are different specialties. Some lawyers are good at both, just as some athletes excel in several sports. But skill in the one does not ensure skill in the other. So the lawyer who tried the case and who is, initially at least, the most knowledgeable on the facts, the proceedings below, and (perhaps) the law is not necessarily the best choice to argue. The same is true of the corporate counsel or narrow expert, who may be intimately familiar with the business that’s the subject of the litigation but may lack the breadth of legal knowledge required to appreciate and explain the consequences of the client’s position as it affects other fields.
