Fees for Appellate Work

Appellate lawyers appreciate the fact that law is not just a series of questions that need definitive answers.  The law is part and parcel of what business organizations and individuals must deal with as part of their daily life.   We no longer have the luxury to dwell on the academic, philosophical, or opaque twists that were the traditional bailiwick of the attorneys.  Clients still want quality legal work, but quality for the client is most often measured by the result of the work that the lawyer performed.

This is a challenge in the world of appeals to higher courts.  Scholarly study, and a complete understanding of the law is required to make a persuasive presentation to an appellate court.  But, the effective appellate lawyer is already doing the work necessary to be informed about the academic work, the trends among the various courts, and the political forces that shape the law.  A client should not be expected to set a lawyer loose among the law books, free to explore the depth of the law, or to satisfy intellectual curiosity.  The law, even at the appellate court, is just one tool that a client can use to obtain results.

An effective appellate lawyer should be willing to do the following things:

  1. Be ready to define objectives for any case that is being handled.  It is not enough to say that the client desires to win on appeal.  The appellate lawyer should be able to map an effective path to that result that the client can evaluate.  If the client is not persuaded by the arguments, you have to wonder whether appellate judges would be.
  2. Be ready to define the process that will follow the strategy that has been agreed upon.  Where the client can participate, through its own staff, or through the resources available to it, there is no reason to pay the lawyer to perform those tasks.
  3. Be ready to adjust the fee (on whatever basis is agreed upon) based on the results.  Contingent Fees, Reverse Contingencies, Result based bonuses, and fixed fees are arrangements that the effective appellate lawyer can, and should consider with the client.  Pure hourly billing does not contain an incentive to work efficiently and effectively – from either side of the attorney/client relationship.
  4. Be ready to collaborate with other resources available.  Large companies, and even small businesses are retaining an appellate lawyer for a specific task.  There is nothing gained by abandoning other professional resources that might provide ready answers to questions.  When a client has other lawyers doing other work, those lawyers can be a valuable resource to the appellate lawyer, and can save the client money.  After all, they already know the answer to a lot of questions that might arise.
  5. Be ready to bundle services or unbundle services.  Appellate lawyers work quite often with the trial lawyers, and the business lawyers in their firm.  Those practices might be related to the assignment, and might be more efficiently performed under one roof.  By the same token, a client who already has lawyers doing related work might logically have no need to assign multiple tasks to the appellate lawyer – especially if they can be done more efficiently or less expensively elsewhere.
  6. Be ready to defer to the experts.  Appellate lawyers do not deal with the same substantive law on every appeal.  The effective appellate lawyers knows a lot about a lot of areas of law, but efficiency demands that the client seek out the smartest lawyer available in any particular area that affects the client’s business.  The smartest lawyers charge the most, and are the busiest.  But, they also provide quick and accurate answers.  That may be the cheapest way to get the right information.
  7. Be ready to learn the client’s business.  Appellate law is not detached from the real world.   The application of legal principles very often depends on the circumstances where the rule, regulation or principle is to be applied.  An effective appellate lawyer argues about specifics, not hypothetical or theoretical situations.  When the appellate lawyer knows the client’s business, the argument about what law applies is much more effective.
  8. Be ready to handicap the probable result.  Lawyers don’t like to give guarantees.  But, in the world of appellate courts, no one expects guarantees.  Instead, clients want, and deserve to know the chances of success, and they want to know why an appellate court might prefer one result to another.  The discussion about probable results not only leads to a more intelligent strategy on appeal, but it helps the client plan for the future.  Even an appeal that is lost can be a cost-saving event if the client can learn from the experience.
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