One of our main focuses at Peter Smythe, P.C. is appel­late lit­i­ga­tion. With the advent of elec­tronic court records and fil­ing, we are able to rep­re­sent fed­eral appel­late clients any­where in the coun­try. If you are con­sid­er­ing a fed­eral or Texas appeal, call us. You’ll likely find that our rates are much lower than larger firms, but that our qual­ity is just as top-​notch.

Mr. Smythe has an excellent reputation in the community as a highly skilled advocate for his clients. I know him to be an extremely competent attorney with high ethical standards, and have referred several of my clients to him to benefit from his legal expertise. —Lynn Smith, Attorney at Law[/styledbox]

An Appeal is Not a New Trial or a Rehearing of the Evidence.

When potential clients ask about the possibility of an appeal, usually they have a new trial or a rehearing of the evidence in mind. An appeal and a trial have virtually nothing in common.

In a trial, evidence is presented for the first time in the courtroom before the factfinder which is either a jury or the judge. During the course of the trial, the judge makes decisions about what evidence should be heard, how it should be heard, and how it should be treated by the factfinder. Depending upon the issue at hand, the judge may have wide to little or no discretion in how he makes his rulings. And those rulings may or may not have a material effect on how the evidence is weighed.

An appeal does not amount to a “do-over.” In an appeal, the appealing party argues that the trial judge erred in forming or executing his rulings on the trial evidence. The appealing party is concerned with legal errors, not witness credibility or how much weight any single piece of evidence was given by the jury or judge.

The mechanism by which the appealing party prosecutes his appeal is the written brief. The party sets out, in written form, the trial court’s error, the underlying law, and how the error requires some kind of remedy. The non-appealing party files a responsive brief and the court of appeals decides whether the trial court committed a legal error, and, if so, exactly what remedy is needed. Remedies may include a new trial where the parties get a “do-over” trial in the district court.

How do I know I have an appeal?

Very often litigants desire to appeal an unsatisfactory judgment or sentence, but without any thought as to whether there may be an appealable issue. Often an appellate lawyer cannot tell you if there is a such an issue until after he has read through the reporter’s transcripts and the volumes of records. The investigation of the record requires a lot of time and the appellate lawyer will have to charge you for this time which can range anywhere from $500 to tens of thousands of dollars, depending upon the case. Many litigants do not want to retain counsel unless they can be assured that their appeal will be successful, but the appellate lawyer cannot guarantee success and he cannot render an informed opinion on the merits of an appeal until he is able to review the record.

What are my chances of success?

Appeals usually entail limited options for relief. Chances of success vary from court to court, but statistics show that you have a 15-25% chance of complete reversal. You should be aware that if you have a money judgment against you, an appeal will not stop execution on the judgment. An appellate bond is necessary to stay execution pending appeal. Similarly, if you have been convicted of a crime, chances are that you will be imprisoned during the course of your appeal.

When will I go to court?

Unlike a trial, an appeal is based upon facts already established in the record. An appeal deals mainly with legal briefs and oral arguments. Oral argument concerns legal argument to the appellate panel and no witnesses or parties are allowed to speak.

How much do you charge?

The short answer? It depends.

Many firms have set hourly rates or flat-rates for categories of cases. Since our firm handles a small caseload and many of our cases involve difficult or unique questions of law, we set our fees for each case based upon the factors set out in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997). In Arthur Andersen, the supreme court held that the following factors must be considered in determining the reasonableness of attorneys’ fees:

  • the time and labor involved, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly;
  • the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
  • the fee customarily charged in the locality for similar legal services;
  • the amount involved and the results obtained;
  • the time limitations imposed by the client or the circumstances;
  • the nature and length of the professional relationship with the client;
  • the experience, reputation, and ability of the lawyer performing the services;
  • whether the fee is fixed or contingent on the results obtained or uncertainty of collection before the legal services have been rendered.

In addition to lawyer fees, the client is obligated to pay costs, including but not limited to, filing fees, transcripts, printing/copying costs, couriers, etc. These costs can range anywhere from $1,000 to over $10,000. Since most appellate work is done in the early stages, a large retainer is customarily required.

Shouldn’t I have my trial lawyer handle the appeal?

Very often the trial lawyer of the case agrees to handle the case on appeal. While some trial lawyers are eminently qualified to prosecute appeals, the appellate process involves a different skill set. Instead of psychology and oratory, the appellate practitioner deals with caselaw and legal error. It is often beneficial for either trial counsel or the client to seek out independent appellate counsel to prosecute an appeal. The appellate lawyer is able to look at the case detached from the emotional pull involved in the trial process and examine any potential legal error with fresh eyes.

Ruggero Aldisert, Senior United States Circuit Judge of the Court of Appeals for the Third Circuit, had this to say about the regular trial lawyer handling appellant argument:

Arguing a case before an appellate court is not easy today. Judges know this and lawyers must understand this. It takes a special kind of litigator, and top-flight litigators are hard to come by on both the trial and appellate levels. Most so-called litigators are deposition takers. They learn bad habits by taking and defending depositions in an unnecessarily confrontational atmosphere in which ad hominem attacks on opposing counsel are more the rule than the exception. But even when litigators get before a trial judge, their performance is more fact-specific than law-oriented. . . . Lawyers often “wing it” in arguing legal questions on the trial court level. (Ruggero Aldisert, Winning on Appeal at 33.)

How long with an appeal take?

Generally, it takes 1-2 years for the appellate court to hand down a decision.

Representative Case Results

Below are a few representative case results. Please be advised that individual cases will vary depending upon the facts and the law relevant to each case.

United States v. Harris, No. 08-11151, 2010 U.S. App. Lexis 2754 (February 9, 2010) – Our firm represented one party in a consolidated case involving the application of the Sentencing Guidelines in fraud cases. We argued that the trial court misapplied the Fifth Circuit’s prior holding in United States v. Sowels in calculating the amount of loss and also that the court had erred in the calculation in the number of victims. The Fifth Circuit issued a significant opinion that clarified its prior holding in Sowels and also provided the federal district courts with the proper framework to determine loss in future cases. The court also sustain our appeal on the calculation of victims and remanded the case for resentencing.

United States v. Inman, 411 F.3d 591 (5th Cir. 2005) – This appeal involved the district court’s authority to order criminal restitution. In this case, the district court ordered the defendant to pay restitution for transactions that were not included in the original indictment and that occurred over two years prior to the temporal scope of the indictment. On appeal, the Fifth Circuit Court of Appeals ruled in favor of the defendant by holding that the district court’s authority to order criminal restitution could not exceed the temporal scope of the four corners of the indictment. The case has been cited in fifteen appellate opinions and eight law reviews.

United States v. Austin, 432 F.3d 598 (5th Cir. 2005) – On appeal, our firm presented the issue of whether the application of the Supreme Court’s remedial opinion in Booker to a sentencing hearing violated ex post facto and due process principles where the underlying offense occurred before the Booker decision. The Fifth Circuit Court of Appeals held that Booker’s remedial opinion could be applied although the offense had occurred prior to that decision. The case has 44 citing opinions, including the 2nd, 4th, 6th, and 7th Circuits and listed in the annotations of three federal statutes.

Sample Briefs and Motions:

United States v. Williams – Appellant’s Brief

Pro Bono Appeals

Unfortunately, we can’t provide pro bono assistance on appeals (our pro bono is outside the courtroom). But you may have other sources of legal representation, such as your county bar association or local law school. Various legal aid clinics might also be able to help.
++If you are seeking to appeal a felony conviction or juvenile court order, and you’re indigent; you might be entitled to an appointed lawyer at no personal expense to you.

Will you review my appellate brief and offer suggestions?

In a word, “no.” As Abraham Lincoln said, “A lawyer’s time and advice are his stock and trade.” We’re a full-service appellate firm, providing top-quality legal research and writing. We don’t work as consultants, helping others file their own motions and briefs.

Examples of our Work

We take a lot of pride in our work and aren’t hesitant to compare it to the work of larger firms and government entities. Below are a few samples, along with the competing briefs or motions (all public documents):

United States v. Vaught. Vaught was accused of conspiracy to possess to distribute methamphetamine. He was tried, convicted, and sentence to life without possibility of release. On appeal, we’ve contested the sufficiency of the evidence, arguing that the government failed to produce evidence of a conspiratorial agreement. The appeal is still pending.

Villanueva v. Tarrant Regional Water District. The TRWD filed a plea to jurisdiction, arguing that Villanueva had missed filing her administrative charge in time. We responded by arguing that Congress’s Lilly Ledbetter Act changed the limitations window. These briefs provide a comparative example of the difference in brief writing styles. The appeal is still pending.

Pena v. Smith. Cindy Pena was sued for the alleged breach of a real estate sales contract. The trial court entered judgment for Smith and awarded him specific performance over the land in dispute. Our firm was retained to appeal the trial court’s judgment. We were successful on appeal; the court of appeals reversed the judgment.

United States v. DeMarquis Williams. DeMarquis Williams was charged with violating 18 U.S.C. § 371 (18 U.S.C. § 1029(a)(2)), Conspiracy to Traffic and Use Unauthorized Access Devices (credit card fraud in layman’s terms). He pleaded guilty to the charge, but preserved his rights to appeal his sentence. We handled the appeal in the Fifth Circuit Court of Appeals and obtained a reversal on one of the two issues presented.

Federal Jurisdiction Appeal. We sometimes are hired by outside firms to assist with the drafting of motions, memorandum, and briefs. Recently, a well-known firm in the state hired us to draft an appellee’s brief on a question of federal jurisdiction. Below is a redacted portion of the brief to demonstrate the kind of work we can do for small, trial law firms. This appeal is still pending.

How Do You Charge?

We bill by the hour, with our time calculated in quarter-hour increments. Our rates range from $250 to $300 per hour, depending upon the complexity of the case. Our rates are competitive because we keep our overhead low. Generally, this is a lower rate (by a large margin) than what you’d be charged by attorneys of comparable experience in large firms.

Because we concentrate in appeals and legal research, it often takes us less time to get to the heart of the issues than general practice or trial lawyers. So, even though other lawyers may charge lower rates, the total cost may be more. Also, there are lots of lawyers who may be good at trial or negotiating contracts, but are not as experienced at appellate matters, so they may end up costing you more in the end.

We require a retainer deposit, which is based on an estimate of what it will take to complete your appeal. We do it this way because most of our work has to be done on the front-end, over a period of several days or weeks. It’s not like trial court litigation where you might have a few hours or days of activity spread out over months or even years. Because we don’t work on appeals one piece at a time, incremental retainer payments are rare.

The main stages of an appeal are record preparation, record examination, research, drafting of the opening brief, reviewing the opposing side’s brief, research and drafting of the reply brief, oral argument, and review of the final opinion. Even an appeal from a very short trial will likely require a full week (40 hours) of attorney time to research and draft an opening brief. At $325 per hour, this is $13,000. Most appeals after a full trial will range from $20,000 to $50,000. If your case was decided in the trial court at an earlier stage by a law and motion proceeding, such as a summary judgment motion, the fees may range from $7,000 to $20,000, depending upon the complexity of the case. More complicated motions with lots of paperwork or novel legal issues would cost more because they’d take more time.

If you are the appellant (the one initiating the appeal), after our initial consultation and review, we hold the retainer deposit in trust. We drawn down the retainer only after services are performed or expenses incurred. We provide you with a monthly statement that informs you how much of the deposit is left in trust, or the amount owed if the opening brief took more time than we originally estimated. We usually don’t provide statement every month after the opening brief is filed because several months may pass without any activity occurring on the case at all.

Costs

Besides the attorneys’ fees, there are certain costs that go hand-in-hand with the prosecution of an appeal. Below are some of the ordinary costs involved:

  • Transcripts – The client must arrange to pay for the court’s transcripts which form part of the record for the purposes of appeal. Transcripts cost approximately $4.00 per page with approximately 3-40 pages per hour of court time.
  • Filing Fees – The current federal appeal filing fee is $455.00. The client must arrange for payment of the filing fee before our firm may commence work on an appeal.
  • Copying and Binding – The courts of appeal require several bound copies of the firm’s final brief. Typical copying and binding costs run between $150 and $400. The client must make arrangements to pay these costs over and above the firm’s attorneys’ fees.
  • FedEx – Appellate litigation is all about deadlines and the firm usually must use a courier service like FedEx frequently.

Currency Transaction Reports

Federal regulations require that cash transactions of $10,000 or more (or aggregating $10,000 or more) be reported to the United States Treasury using a Currency Transaction Report (CTR) form. This form requires that the identity of the person paying the fee be reported to the government. We prefer not to receive payment in cash. Payment should instead be made by check or wire transfer. The firm does not accept credit cards.

Source of Fees

If your case is potentially subject to government seizure or forfeiture efforts, payment of your attorneys’ fees must derive from assets not subject to a government claim. This may require you to demonstrate that the assets used for payment of attorneys’ fees are not the product of any criminal proceeds. In rare occasions, counsel may be required to disclose to the government the source of payment to prevent a forfeiture of attorneys’ fees.

Flat Fee Appeals

We’ve found that flat-fee arrangements aren’t all that workable for several reasons. First, many times the client or his trial lawyer think that there are only one or two “issues” in a case. Once we get the record, though, read through it and do the preliminary research, we may find more issues that should be argued. This adds considerable time to an initial estimate. Similarly, we might determine that a more detailed treatment of a particular issue is necessary in order to present the best and most thorough arguments to the appellate court. We might determine that it’s necessary to spend time reading case law from other jurisdictions to support our arguments. All of this could take much more time than a “standard” brief.

In these instances, the initial estimate would prove to be unrealistic for the proper presentation of the case, so the lawyer either begins working for free or has to go back to the client and renegotiate the original contract. Either way, someone is unhappy. An hourly rate provides the lawyer the maximum flexibility to do a thorough job.

On the other hand, a flat fee may turn out to be too high. The client or his trial lawyer may think that there are three or four significant issues in an appeal. We may estimate that it’d take ten days, or 80 hours, of lawyer time to read the entire record and draft the opening brief. We may budget two days, or 16 hours, for the reply brief, and another two days, or 16 hours, to prepare for and attend oral argument. Added to this might be ten hours for miscellaneous services, such as motions, and reviewing and evaluating the opinion when it’s filed. This totals 122 hours, which would be $39,600 as a reasonable estimate for completing the appeal. A “flat fee” based on that estimate might be $40,000, considering an appropriate discount for a full, non-credit card payment at the time we’re retained.

But, after reading the full record and conducting our initial research, we might discover that two of the client’s issues are wash-outs. The scope of the entire project would then be half of what the client and his trial lawyer believed them to be. The client who paid the flat fee would have paid $40,000 for $20,000 worth of work. Although the client might have been happy with the peace of mind of a flat fee, knowing that he wouldn’t owe more than $40,000 on the appeal, he certainly didn’t get a good deal when all things are considered.

Consequently, we prefer handling appeals on an hourly rate basis, with a few exceptions:

  • We handle initial evaluations of the potential merits of an appeal on a flat fee basis. Depending upon the trial court proceedings, we generally charge for one or two days of attorney time.
  • If you’re the respondent and have the appellant’s brief in hand, we may be able to review the appellant’s brief and quote you a flat fee for drafting a response brief. While we still prefer an hourly fee arrangement in this situation, sometimes a flat fee can be appropriate.
  • We can usually draft and file a petition for review at the Texas Supreme Court on a flat-fee basis.

Each case is different, and all the terms of our agreement will be set forth in our written fee agreement, which is the controlling contract concerning our representation, and not any of the information on this website. [/panel] [panel title=" criminal – texas and federal "] We take a lot of pride in our work and aren’t hesitant to compare it to the work of larger firms and government entities. Below are a few samples, along with the competing briefs or motions (all public documents):

United States v. Vaught. Vaught was accused of conspiracy to possess to distribute methamphetamine. He was tried, convicted, and sentence to life without possibility of release. On appeal, we’ve contested the sufficiency of the evidence, arguing that the government failed to produce evidence of a conspiratorial agreement. The appeal is still pending.

United States v. DeMarquis Williams. DeMarquis Williams was charged with violating 18 U.S.C. § 371 (18 U.S.C. § 1029(a)(2)), Conspiracy to Traffic and Use Unauthorized Access Devices (credit card fraud in layman’s terms). He pleaded guilty to the charge, but preserved his rights to appeal his sentence. We handled the appeal in the Fifth Circuit Court of Appeals and obtained a reversal on one of the two issues presented.

United States v. Guerrero. Hugo Guerrero was charged with being involved in a conspiracy to distribute a large amount of marijuana and cocaine. His presentence report recommended a prison sentence based on the quantity of drugs involved in the conspiracy. We filed a motion for variance, arguing that the recommended guideline range should be ignored because it didn’t adequately consider his minimal role in the offense. Our client was sentenced to the statutory minimum, a material downward departure from the presentence report’s original calculation.

Federal Jurisdiction Appeal. We sometimes are hired by outside firms to assist with the drafting of motions, memorandum, and briefs. Recently, a well-known firm in the state hired us to draft an appellee’s brief on a question of federal jurisdiction. Below is a redacted portion of the brief to demonstrate the kind of work we can do for small, trial law firms. This appeal is still pending.

[/panel] [panel title=" civil – texas and federal "] Villanueva v. Tarrant Regional Water District. The TRWD filed a plea to jurisdiction, arguing that Villanueva had missed filing her administrative charge in time. We responded by arguing that Congress’s Lilly Ledbetter Act changed the limitations window. These briefs provide a comparative example of the difference in brief writing styles. The appeal is still pending.

Pena v. Smith. Cindy Pena was sued for the alleged breach of a real estate sales contract. The trial court entered judgment for Smith and awarded him specific performance over the land in dispute. Our firm was retained to appeal the trial court’s judgment. We were successful on appeal; the court of appeals reversed the judgment.