Few medical malpractice cases are actually brought up on appeal in any given case load. But when litigation does continue beyond the trial level, can the trial attorney handle it or should an appellate specialist be called in?

Those who support the use of a specialist enumerate reasons ranging from knowledge of unique rules and procedures to the mere psychological impact on the opposition of calling in a "heavyweight." On the other hand, there are those who reject the notion that appellate "specialists" even exist. Others, like James H. Robb, vice president of claims operations for Medical Liability Mutual Insurance Co., say, "You can't talk in absolutes...It's not black and white whether we use trial counsel or an appellate attorney; it depends on the issues.

Advocates of using appellate counsel present the following arguments:

• An appellate attorney's objective eye is critical to a holistic, well-planned appeal. At Chicago's Cassiday, Schade & Gloor, appellate attorneys get involved eady in the post-trial motion stage because "they may pick up on things the trial attorney wouldn't ... frequently [trial attorneys] don't have the time or objectivity ... appellate counsel can raise the issues with specificity," says Timothy J. Ashe, a defense trial attorney who also is chairman of the firm's appellate department. In fact, the appellate specialists sometimes offer input during the trial phase on motions in limine, briefs, etc., to preserve errors and help keep the record "clean."

• A specialist is familiar with the unique rules and procedures. (Even some appellate attorneys admit it's not the most persuasive argument. "That's just training that comes with doing it. Anyone can do it, though you may not have the facility with it of someone who's been doing it for years," says Patricia D'Alvia, a med-mal defense appellate attorney at New York's Morris & Duffy.)

• Experience and having the time to devote to the process is crucial. Specialists interviewed for this article say preparation easily exceeds 100 hours, and one attorney said she has spent 300 to 400 hours just on a record. "Where [is a trial attorney] going to get the time to work up an appeal? Who's going to tend to the rest of the trial practice?" Mr. Ashe says. Indeed, the main reason New York's Kramer, Diloff, Tessel, Duffey & Moore refers its appellate work, says plaintiffs' counsel Judy Livingston, is "It's impossible to do both. We're constantly on trial. You can't specialize in. both areas."

• The quality of the written brief is better because specialists have the interest, opportunity and experience to refine their writing skills and they can devote the necessary time to formulate and focus their arguments and produce a brief that cogently and persuasively puts them forth.

• Oral argument before an appellate bench is a unique skill requiring experience. It is unlike an argument before jurors, who, unlike jurists, can't interrupt and don't ask questions. Judges are interested in the legal analysis that is a specialist's forte.

• Appellate counsel know the appellate court personnel and thus may get more consideration and extra assistance from support staff.

• Retaining appellate counsel signals that the client is serious about taking the appeal, which may encourage settlement. Many appellate courts have settlement parts where cases can be resolved in conference before perfecting the appeal; a specialist's evaluation and handling in these parts may make all the difference.

• Appellate counsel can work on the 'frontiers of the law" to use a 'test case' to change the law in favor of clients.

But trial attorneys who handle their own appeals reject the notion that they are any less prepared or qualified. While agreeing that appellate work is time-consuming and draws on some special knowledge, they argue that any intelligent, dedicated attorney can find the time and learn the ropes if so inclined. "Most of the work they do is accessible to people who take the time to learn. It simply may be more of a time commitment for a non-specialist," says defense attorney David W. Summer of Cleveland's Jacobson, Maynard, Tuschman & Kalur Co., LPA, who handled his own appeals when he was a plaintiffs' attorney at a different firm. He now refers them to the in-house appellate department simply because "I don't like appellate work as much as trial work."

It's a complete fiction to contend a competent trial lawyer is just in deposition and trial," says plaintiffs' attorney Anita Porte Robb of Kansas City's Robb & Robb, adding, "No one knows the flavor or facts of the case or understands the transcript like the person who tried it." In fact, all appellate attorneys say they do solicit and value the input of the trial attorney. "A lot of stuff doesn't come out on paper (the emotional issues) and you need that to understand what happened. You can't see it from the record, but the trial attorney knows it," says Ms. D'Alvia.

The decision whether to call in an appellate specialist may ultimately rest on the specifics of the case at issue. Medical Liability Mutual regularly gets an independent second opinion from appellate counsel when trial counsel suggest an appeal, says Mr. Robb, but determines who actually handles an appeal based on such factors as excessiveness of award and costs involved, complexity of issues, the impact an adverse decision could have (i.e., could it create substantial bad law?) and trial counsel availability.

In the end, the appeal is a collaborative effort. The trial attorney "knows the nuances of the record - where information is. The appellate attorney takes that knowledge and applies it to get the court's attention. He knows how to frame issues and research them," says Norm Schindler, a senior claim officer - medical, for St. Paul Fire and Marine.