November’s presidential election created a generation of chad experts. Whether swinging, hanging, punch-ed, pregnant or dimpled, we have come to know more about those tiny bits of paper than we ever thought possible. As the election dragged on, voters also received a crash course in the judicial process as they watched the Bush and Gore legal teams trading arguments in courtrooms from Florida to Washington.

What the public became particularly aware of was the role of the appeals court, a very different legal animal from the trial court popularized by dramatic characters from Perry Mason to O.J. Simpson. It is an arena San Diego residents are paying closer attention to these days as the city fights in the 4th District Court of Appeals to overturn a $94.5 million verdict awarded in January to developer Roque de la Fuente II.

In almost every criminal or civil case an appeal is possible. Usually the loser tries to have the verdict overturned or modified, which means the winner then has to defend his position. Sometimes even the winner will appeal hoping for a better decision. While it took the election to thrust the appeal process onto the front pages, this branch of the legal system has been quietly growing in San Diego in recent years and today most large law firms have created special in-house appellate groups.

Although this work might lack some of the theater, fire and drama found in the trial courtroom, it is becoming the practice of choice for an increasing number of attorneys. Many appellate attorneys liken trial court litigation to war, speaking without enthusiasm of “battlefields,” “fighting” and “trench warfare.” This group clearly prefers a more cerebral and less confrontational approach to the law.

Mike Fish, of McKenna & Cuneo, who still does some litigation, says appeal work is a more academic discipline and requires a very different set of skills. “Primarily you need to be a very good writer,” he says.

Unlike a trial, where lawyers argue before a judge or jury and perhaps call witnesses, most issues at appeal are decided on written briefs before a single word is spoken in court. And since there is generally a 50-page limit on briefs — many attorneys aim for fewer — writing ability must be married to razor-sharp analytical skills focusing on perhaps just two or three issues from a trial which may have lasted for months.

Fish specializes in civil appeals, which cover a broad range of cases including real property, professional liability, environmental issues, probate and estate planning, business transactions and partnerships. He estimates about 80 percent of the time he’s representing clients who have lost at trial. “These are usually people staring down a big judgment against them,” he says.

Fish says many appeals are handled by the original trial lawyer who may do a good job. However, he reckons an appellate specialist probably will do better and represents a sensible investment by the client, especially if the stakes are high. Certainly bringing an appeal is not cheap and the bill for a large, lengthy and complex case can top six figures.

Average fees of appellate attorneys in San Diego are around $250 per hour, and when other associated costs are included even a routine appeal can easily gobble up $20,000 to $30,000. “The client needs to make a business decision after talking to the appellate lawyer,” says Fish, who normally likes to give a preliminary opinion to help his clients weigh the chances of success against the likely costs.

Appellate attorneys are under no illusions about how hard it is to overturn a verdict and win an appeal. “It’s an uphill battle because there’s a presumption that the trial court judgment is correct,” says Fish.

Official figures strongly reinforce that view. Steve Kelly, clerk administrator at the Court of Appeals in San Diego, says less than 5 percent of criminal verdicts are reversed in any way and only about 15 percent of civil court decisions.

As appellate lawyers comb through trial transcripts and piles of associated documents their antennae are twitching for something very specific on which to base an appeal. In a word, they are looking for mistakes. But not just any mistakes, explains John Morris, a partner with Higgs, Fletcher & Mack. That would be much too easy, too black and white in an area painted countless shades of legal gray.

Morris and fellow appellate attorneys agree there are few, if any, perfectly tried cases. There always are mistakes, but most fall under what is known as the “harmless error rule;” that is, they don’t really matter.

What Morris, a 20-year veteran with his law firm, and other appeal specialists look for are mistakes that they believe were prejudicial and adversely affected the result of the trial. The most fertile area is a judge’s instructions to the jury. If the judge misdirects the jury on a point of law or errs in explaining the legal principles involved in the case, a successful appeal may well follow.

Morris revels in the challenge of researching and writing briefs that must succinctly highlight such mistakes and persuade the appeals court that they led to an unfair and wrong decision. The appeal process is well-defined: the appellant files an opening brief, the other party files a responding brief and then the appellant wraps up the exchange with a reply brief.

When the matter finally reaches the Court of Appeals each party is granted up to 15 minutes for oral arguments — a short time which, says Morris, only serves to underline the importance of the written brief.

Although he still enjoys business litigation, Richard Spirra is another who prefers appeal work. “In trials you see a very inefficient side of the legal system — two parties playing games with each other,” he says. Spirra, from the San Diego office of Luce, Forward, Hamilton & Scripps, emphasizes the importance of early involvement with a case and says many key steps can be taken before and during a trial.

An appellate attorney is often brought in to advise during a trial on a strategy known as “making the record” or “protecting the record.” This means when trial lawyers want to contest or challenge a judge’s ruling or decision, they need to object, preferably in writing, making sure the objection becomes part of the court record. Only then can the issue be revisited as grounds for appeal.

Spirra believes good lawyers think this way right from pretrial hearings — through the trial itself and even after the verdict into posttrial motions — always building in safeguards and looking for ways to contest a losing verdict and protect a winning one. Spirra, who handles a range of civil cases, typically business disputes, taxation matters, probate, bankruptcy and insurance issues, says this careful and considered approach often paves the way for settlement before an appeal reaches court.

In 1984, Bill Dato, now a partner at Milberg Weiss Bershad Hynes & Lerach, began almost 10 years of work as a staff attorney with the San Diego Court of Appeals. Seeing the process from the other side gave him unique insight into what constitutes a successful appeal. “You have to be able to make good written presentations,” he says. “Appellate court decisions are almost always decided on briefs.”

Today he applies that knowledge and understanding to a portfolio of complex civil cases, many of them class actions, such as the one successfully contesting the smog impact fee for newly registered out-of-state cars which returned $300 to each of 1.7 million California motorists.

His experience also has led to a different appreciation of oral arguments, the best use of which, he maintains, is for a dialogue between advocates and judges very much as we saw in the election aftermath.

“I welcome questions and interruptions,” says Dato, who believes the opportunity for oral argument gives a rare insight into where the judges are and what points they may still need clarified.

Dato, who’s been teaching appellate advocacy at California Western School of Law for almost a dozen years, says a good attorney must be able to clearly think through all the issues which, at this level, are legal rather than factual.

Mary Lehman is one of three appellate attorneys at Gray Cary Ware & Freidenrich. She reckons 70 percent of her case load is generated inside the firm, almost all of it involving defense of verdicts won in court by the company’s trial lawyers.

Lehman finds herself working for technology clients, on commercial and family issues, white collar criminal cases, and on patent appeals which are automatically heard in the federal court. Her strategy begins by talking to the trial lawyers who, she says, usually have a good feel for the key issues. Then she’ll look at the trial transcript and read the closing arguments, which normally summarize the legal arguments and evidence.

After maybe asking many questions and researching similar cases, Lehman is ready to start writing her brief, which she often finds a complicated and difficult process that can take several weeks. “The blank page never gets easier,” she says. “Writing and understanding are inextricably linked, so the first thing I do is try to get some thoughts down on paper.”

Lehman says it’s both an effort and a challenge to make briefs concise. “For example, a six-month trial has to be condensed to something as succinct and clear as possible.”

David Niddrie, a specialist in appellate law, shares a private practice in San Diego with fellow attorney Jennifer Hegemier. His background includes working as a court of appeals research attorney and, between 1984 and 1986, as staff counsel at the U.S. Supreme Court in Washington, D.C.

Those experiences have sharpened certain almost intangible skills, which Niddrie lists as a sense of what the court wants, what persuades the court, what issues are important and what errors are meaningful, plus an appreciation for the practicalities of the appeals process. “You have to recognize you can only hold the appeal court’s attention for so long,” he says. “That means carefully picking and choosing at most three to five issues, being persuasive on those and letting any others go.”

Although trial lawyers often will point the way to a significant error in the case, Niddrie believes the appellate specialist is then able to approach that issue “with a good idea of what’s palatable to the appellate court.” Similarly, he says, while introducing new issues on appeal is not permitted, a good appellate attorney may build on matters raised at trial with the help of additional research and perhaps a different perspective.

The legal process is notoriously slow, but clerk administrator Kelly says things are getting better in the Court of Appeals. While San Diego did have a backlog of about two years, Kelly says decisions are now coming through less than 12 months after briefing.

If the court rejects an appeal the plaintiff can ask for a rehearing, which is very rarely granted, or petition the Supreme Court. But the Supreme Court, unlike the Court of Appeals, is not obliged to take every case and declines about 97 of every 100 filed. Those accepted are generally regarded as having constitutional or other profound implications within the state or wider community, or are matters where the appeals courts have been reaching conflicting decisions.