The Singapore Law Gazette

Trial Advocacy and Appellate Advocacy — As Different as Chalk and Cheese?

It is commonly assumed that good trial lawyers also make good appellate advocates. However, in an age where lawyers are increasingly driven to specialise in narrow fields of work, perhaps the time has come to recognise that trial advocacy and appellate advocacy require different skillsets. This article will explore how and why trial advocacy and appellate advocacy are different from each other, and propose some ideas for specialised training to ensure that junior lawyers are well-placed to be equally proficient in both areas.

Introduction

It is often assumed that good trial lawyers also make good appellate advocates, and vice versa. Such an impression is reinforced by Singapore’s top lawyers past and present: David Marshall, the foremost criminal lawyer of his day, was said to have been both a great trial lawyer¹ “Citation for Mr David Saul Marshall by the Attorney-General, Mr Tan Boon Teik” (1992) 4 SAcLJ 1 at 5. and an excellent appellate advocate.² Kevin Tan, Marshall of Singapore: A Biography (2008, ISEAS) at page 430. More modern examples include our foremost Senior Counsel,³ See Nicholas Poon, “The Decline of Oral Advocacy Opportunities: Concerns and Implications” (2018) SAL Prac 1 at para 7. many of whom regularly appear as both trial and appellate counsel in the High Court and Court of Appeal.

But can such an assumption really be made? A trial judge makes findings of fact, whereas an appellate judge decides on the correctness of this finding, by either upholding or reversing the decision. A trial lawyer’s bread-and-butter work is cross-examining witnesses, but there are no witnesses to be found in an appellate setting. With these different considerations, it stands to reason that trial and appellate advocacy require different skillsets. It may be that Singapore’s legal giants are the exception to the norm.

This article will attempt to explore the thesis that trial and appellate advocacy require different skillsets, and if so, whether there is a need for more focused specialist training. It is hoped that this hitherto under-appreciated area of law will receive greater attention from advocacy trainers and senior lawyers. After all, given the increasing lack of “first-chair” opportunities for junior lawyers to lead their own trial or appeal, the margin for error in one’s first lead counsel role is very small.⁴ Nicholas Poon, “The Decline of Oral Advocacy Opportunities: Concerns and Implications” (2018) SAL Prac 1 at para 31. It is therefore all the more important that the right skills are inculcated at a relatively early stage of one’s career.

Differences Between Trial and Appellate Advocacy

In Singapore, it is usual for trial counsel to also be instructed to act in any appeal, although it is becoming a more common practice for parties to instruct new counsel on appeal. Still, the practice of appellate litigation is not regarded as a distinct practice area, and only one local law firm has a dedicated appeals department.⁵ Rajah & Tann Singapore LLP has a dedicated “Appeals and Issues” Practice Group.

In the US however, appellate litigation is not only regarded as a separate practice area, but recent decades have seen the emergence and growth of a specialised private appellate bar.⁶ Thomas Hungar and Nikesh Jindal, “Observations on the Rise of the Appellate Litigator” (2010) 29 (3) The Review of Litigation 511 at 512 and 536. This appears to be a recognition that trial advocacy requires a very different skillset from appellate advocacy.

Such a view is shared by the highest reaches of the US judiciary. Prior to his elevation to the bench, US Supreme Court Chief Justice John Roberts was a noted appellate litigator, having headed the appellate practice section of a major Washington, DC firm. However, while he enjoyed appellate work, he did not share the same feelings towards trial work. According to him:

“The skills that are needed to be a good trial lawyer are different from the skills needed to be a good appellate lawyer. Occasionally, you get great people who can do both, and my hat’s off to them. I’m just not one of them. And I didn’t enjoy the trial stuff as much. I enjoyed the appellate work, and I thought because I enjoyed it, I was better at it than I was at trial stuff.”⁷ “Interviews with United States Supreme Court Justices: Chief Justice John G Roberts Jr” in (2010) 13 Scribes J Legal Writing at 18.

In a similar vein, the late US Supreme Court Justice Antonin Scalia has observed that appellate advocacy and trial advocacy are different specialties, and that skill in one does not ensure skill in the other.⁸ Antonin Scalia and Bryan Garner, Making Your Case: The Art of Persuading Judges (2008, Thomson West) at page 147–148. Federal judges of the intermediate appellate Courts also take the same view,⁹ Thomas Hungar and Nikesh Jindal, “Observations on the Rise of the Appellate Litigator” (2010) 29 (3) The Review of Litigation 511 at 517. with a former federal appeals judge having once declared that “the skills needed for effective appellate advocacy are not always found — indeed, perhaps, are rarely found — in good trial lawyers”.¹⁰ Laurence Silberman, “Plain Talk on Appellate Advocacy” (1994) 20(3) Litigation 3 at 3.

But why do such eminent judges regard trial and appellate advocacy as different skillsets? The answer, it is submitted, lies in the characteristics of the decision-maker and that decision maker’s ultimate function. After all, advocacy is about persuasion, and the central aim of advocacy is to influence or persuade a decision-maker of one’s point of view.¹¹ Michael Kirby, “The future of appellate advocacy” (2006) 27 Australian Bar Review 141 at 141–142. One therefore has to customise one’s approach accordingly.

Trial Advocacy — Resolving a Factual Dispute Between Parties

The main objective of a trial is to resolve a factual dispute.¹² For civil proceedings, Order 5 Rule 2 states that “Proceedings in which a substantial dispute of fact is likely to arise shall be begun by writ”. Two sides appear before a judge with competing versions of (usually) the same set of facts, and request for a resolution of this difference. While the resolution is ultimately through the application of the standard and burden of proof, a trial essentially boils down to a form of “story-battle”,¹³ Mark Bennet, “Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker ‘I am a Litigator’” (2014) 33 Review of Litigation 1 at 10–11. in the sense that each side attempts to persuade the judge of its case theory by crafting a narrative through the questioning of witnesses and submission of closing arguments.

As with any story, its cast of characters is of primary importance, and this is where witnesses take centre stage. Indeed, no less than one of Singapore’s foremost litigators, Davinder Singh SC, has said that “the primary objective of cross-examination is to persuade the judge, through the witness’s testimony, that your client’s case is deserving of justice”.¹⁴ Davinder Singh SC, “Cross-examination” in Modern Advocacy: Perspectives from Singapore (Eleanor Wong, Gen Ed) (2008, Academy Publishing) at para 07.008. See paras 07.008 to para 07.012 for examples as to how a witness may be turned to the cross-examiner’s advantage. Because it is through witnesses that the parties are about to elicit evidence that supports their narrative,¹⁵ Ray Finkelstein, “The Adversarial System and the Search for Truth” (2011) 37 Monash U L Rev 135 at 139. their performance in cross-examination is usually determinative of the outcome of the trial.¹⁶ Mark Bennet, “Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker ‘I am a Litigator’” (2014) 33 Review of Litigation 1 at 20. Succeed in discrediting or undermining your opponent’s witnesses, and you succeed in proving your client’s case. This is where one’s ability to weave a compelling narrative from the strands of cross-examination comes to the fore, by ensuring that the witnesses perform well.¹⁷ Choo Han Teck, “Speech at NUS Advanced Criminal Legal Process Course 2017” (6 April 2017) at 1–2. A degree of performance, though not overstepping the line into unnecessary dramatics or theatrics, can be an advantage.¹⁸ See Les McCrimmon and Ian Maxwell, “Teaching Trial Advocacy: Inviting the Thespian into Blackstone’s Tower” (1999) 33 Law Tchr 31 at 34 and 39.

Appellate Advocacy — Correcting an Error of a Lower Court

On the other hand, the objective of an appeal is the correction of error by a lower Court.¹⁹ Paul Tan, “Writing a Persuasive Appellate Brief” (2007) 19 SAcLJ 337 at para 10. Unlike a trial, the appellate judge does not start on a blank slate — one side has already prevailed, and the trial judge would have prepared grounds of decision explaining why that side has done so. Indeed, the threshold for appellate intervention is when it comes to overturning findings of facts: unlike the trial judge, the appellate Court does not have the benefit of having seen and assessed the veracity and credibility of witnesses, so appellate Courts are usually slow to disturb findings of fact.²⁰Yong Kheng Leong v Panweld Trading Pte Ltd (2013) 1 SLR 173 at (18) (for civil appeals) and Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik (2008) 1 SLR(R) 601 at (32) (for criminal appeals).

It is also worth bearing in mind that because of this high threshold, the appellant is on the back-foot, so to speak. The appellant bears the burden of justifying why appellate intervention is required, otherwise the lower Court’s judgment stands; during oral argument in the Court of Appeal, it is not uncommon for an appeal to be dismissed without the respondent being called upon to respond orally. A good appellate advocate must therefore carefully consider the standard of review before a decision to appeal is made.²¹ Paul Tan, “Writing a Persuasive Appellate Brief” (2007) 19 SAcLJ 337 at para 11–12.

Another area in which an appeal differs materially from a trial is the framework in which the advocate operates. Unlike a trial, where the primary sources of evidence are witnesses or witness statements, the primary materials before an appellate Court are the written briefs.²² Paul Tan, “Writing a Persuasive Appellate Brief” (2007) 19 SAcLJ 337 at para 101. As such, written submissions assume equal importance if not greater importance than oral argument,²³ It has also been observed that “ninety-five per cent of appellate cases are won or lost on the basis of written briefs”: Ruggero Aldisert, “The Appellate Bar: Professional Responsibility and Professional Competence — A View from the Jaundiced Eye of One Appellate Judge” (1982) 11 Cap U L Rev 445 at 456. given that the appellate judges read the written submissions in advance of the oral hearing and the time allocated to parties to present their oral arguments is not unlimited.²⁴ Michael Kirby, “The Future of Appellate Advocacy” (2006) 27 Australian Bar Review 141 at 143.

As for oral submissions, again there is a vast difference in the manner in which counsel can be expect to be questioned. In a trial, excessive judicial intervention is frowned upon,²⁵Public Prosecutor v Chua Siew Wei Kathleen (2016) 2 SLR 713 at (24). and cross-examination of witnesses is primarily the responsibility of counsel — judges are not supposed to descend into the arena.²⁶Mohammed Ali bin Johari v Public Prosecutor (2008) 4 SLR(R) 1058 at (175). On the other hand, intervention from the bench in an appellate setting is not only to be expected, but is to be welcomed. Questions give counsel a sense of how the appellate judge is leaning, thereby affording counsel an opportunity to change the judicial mind.²⁷ Laurence Silberman, “Plain Talk on Appellate Advocacy” (1994) 20(3) Litigation 3 at 4. In fact, according to the late Justice Scalia “the only time you know for sure that you’re not wasting your time in oral argument is when you’re responding to a question… good counsel welcomes, welcomes questions” (emphasis in original).²⁸ “Interviews with United States Supreme Court Justices: Justice Antonin Scalia” in (2010) 13 Scribes J Legal Writing at 70.

The Way Forward — Specialist Training?

As can be seen from the above summary, it is clear that both trial and appellate advocacy require vastly different skillsets. The focus in a trial is to prove one’s case via the questioning of witnesses, whereas in an appeal, the objective is to convince the appellate Court of the strength (or weakness) of the trial judge’s reasoning. It would be foolhardy in the extreme to think that techniques which work in the context of discrediting a witness would find traction in an appellate Court. Likewise, if counsel has been unable to elicit the necessary admissions or concessions in cross-examination, no amount of eloquence in closing submissions can bridge that gap.

Still, unlike the US, it may be that a specialised appellate bar is not necessary as yet. While trial advocacy and appellate advocacy have different demands, it is not impossible for good advocates to master both sets of skills and learn to adjust their techniques accordingly.²⁹ Ruggero Aldisert, “The Appellate Bar: Professional Responsibility and Professional Competence — A View from the Jaundiced Eye of One Appellate Judge” (1982) 11 Cap U L Rev 445 at 447. Furthermore, there is a significant advantage in having trial counsel continue on as appeal counsel: trial counsel will invariably be more au fait with the record of appeal compared to newly instructed counsel, and familiarity with the record and being able to point out where the lower Court erred is key to the successful outcome of an appeal.³⁰ Frank Tuerkheimer, “A More Realistic Approach to Teaching Appellate Advocacy” (1995) 45 J Legal Educ 113 at 114.

With this in mind, what should the way forward be for young advocates hoping to impress in their maiden outing as lead counsel in the High Court and Court of Appeal? As alluded to previously, short of more oral advocacy opportunities for young lawyers, the only viable alternative is some sort of “safe space and environment” for aspiring advocates to put theory into practice.³¹ Nicholas Poon, “The Decline of Oral Advocacy Opportunities: Concerns and Implications” (2018) SAL Prac 1 at para 33. Here, the logical solution is to attend advocacy workshops to attain the requisite standard of competence. For trial advocacy, the Law Society of Singapore runs a Trial Advocacy course every year, where participants are taught and assessed by senior lawyers, and are also given the opportunity of conducting a mock trial from beginning to end.³² The Law Society of Singapore, Trial Advocacy Course 2018 <https://www.lawsociety.org.sg/cpd/pdf/Brochure_Trial%20Advocacy%20Course%202018%20(Portal).pdf> (accessed 20 October 2018). More advanced opportunities are also available in the form of the Law Society’s “Handling Financial Experts” Workshop, which provides an additional challenge in the form of cross-examining an expert.³³ The Law Society of Singapore, Handling Financial Experts in Court 2018 <https://www.lawsociety.org.sg/cpd/pdf/Brochure_Handling%20Financial%20Experts%20in%20Court%202018%20(Portal).pdf> (accessed 20 October 2018).

On the other hand, it appears that there is no equivalent for appellate advocacy. One could argue that moot Court at the undergraduate level is sufficient preparation for appellate advocacy, and indeed, many of Singapore’s leading practitioners of the law today were prominent mooters as students.³⁴ See Chen Siyuan, “Advanced Fundamentals of Oral Appellate Advocacy in a Moot Court” (2012) 30 SingLRev 45 at 45. However, in reality a moot Court problem does not quite capture the essence of appellate advocacy, for the simple reason that a record of appeal is far more extensive than any moot problem can hope to be.³⁵ Robert Martineau, “Appellate Litigation: Its Place in the Law School Curriculum” (1989) 39 J Legal Educ 71 at 83. A key part of good appellate advocacy is being able to guide the Court to the relevant portions of the record, rather than just explaining what the law is or should be.³⁶ Frank Tuerkheimer, “A More Realistic Approach to Teaching Appellate Advocacy” (1995) 45 J Legal Educ 113 at 114. That is not to say that moot Court training is not relevant, but again it should not be assumed that a track record of wins in moot competitions automatically makes one an appellate advocate. Perhaps some sort of Appellate Advocacy workshop can be introduced to give young advocates a similar chance to hone their skills in this respect; as with the Law Society’s Trial Advocacy Workshop, such a course should allow for participants to be able to conduct a full appeal with the benefit of continuous assessment by senior trainers.

Conclusion

To conclude, it may be that trial advocacy and appellate advocacy are as different as chalk and cheese, and proficiency in one does not guarantee proficiency in the other. That is not to say that lawyers cannot and should not aspire to be good at both, or that such dizzying heights are impossible, but it may be that specialised training is necessary to ensure that these skills are developed in the right manner. For young lawyers, it would be useful to bear these differences in mind before taking on a one’s maiden brief as lead counsel in a trial or appeal. In any case, it is hoped that this article has gone some way in flagging the key differences in the way trials and appeals should be approached, thereby sparking further conversation in an under-explored area of legal practice.