Shifting Appellate Paradigms

February 28, 2002 Published Work
Reprinted with permission from Connecticut Law Tribune, February 2, 2002

In episode three of the original "Star Trek" series, a gigantic alien vessel has trapped the Enterprise. The alien captain, who looks like something out of Edvard Munch's "The Scream," has promised to destroy the Enterprise. The crew has tried in vain to escape. Spock turns to Kirk and says, "Checkmate, Captain." In his Vulcan world of pure logic, he has conceded defeat.

Moments later Dr. McCoy threatens to write Kirk up in his medical log for pushing a crewman to the brink of psychological collapse and adds, "I'm not bluffing, Jim." Kirk responds angrily, "The day you can bluff me, doctor…" Suddenly a light bulb goes off in Kirk's head. He turns to Spock and says, "Not chess, Mr. Spock, poker." Kirk then constructs an elaborate bluff on the alien—"The Corbomite Maneuver"—which leads to the Enterprise's successful escape.

Captain Kirk's statement to Spock is among the best examples in pop culture of a "paradigm shift," whereby one "world view" yields to a fundamentally new view that has the capacity to resolve questions the previous paradigm could not. Well-known examples of paradigm shifts include the transitions from a Ptolemaic to Copernican view of the universe and from Newtonian classical mechanics to Einstein's special and general theories of relativity. However, I like to think of paradigm shifts this way: Sometimes simply changing the name of the game (like from chess to poker) can produce new solutions that did not exist under the old game.

How is any of this pertinent to appellate law? One of the most common mistakes trial lawyers make on appeal is to repeat their closing arguments. We do this in our appellate briefs and during oral argument. There is no quicker way to turn off an appellate judge during oral arguments than to make this mistake. The arguments that persuaded (or failed to persuade) the fact finder are unlikely to be the arguments that appellate judges will find persuasive. In short, trial lawyers tend to remain stuck in their "trial paradigm" and, consequently, cannot see the possible new solutions the "appellate paradigm" offers.

Is there a way to avoid this mistake? Absolutely. But it requires that trial lawyers—among the most headstrong, egotistical creatures known to human kind—practice a little humility. Trial lawyers have often lived with a case for years before it goes up on appeal. They know it inside and out. That is a great strength at trial, but it can become a liability on appeal. For it is exceedingly difficult for a trial lawyer to look at an old case with a fresh eye. Yet a fresh eye may be exactly what the case needs.

At some firms, when a case goes up on appeal, the trial lawyer hands it off to an appellate lawyer. The trial lawyer is frequently consulted, but the appellate lawyer—unhampered by the historical "baggage" that the trial lawyer carries—brings a brand new perspective to the case. Such an approach has transaction costs that some may think too high. At a minimum, any trial lawyer taking a case up on an appeal should ask someone who has had little, if any, involvement in the case to give it a fresh look. That person may provide a fundamentally different way to think about the case—a new paradigm—that may suggest arguments more likely to succeed on appeal. The marginal cost to the client of this approach is low and the benefits can be great.

In short, go boldly where few have gone before. When you're taking a case you tried up on appeal, seek out new paradigms to gain a different perspective on your case. The appellate court—and your client—will appreciate your effort.