Appeals
What You Can Expect
The Short Version
“Trial lawyers and appellate lawyers are the same in that they play in the same pool. But trial lawyers are more like swimmers, and appellate lawyers are more like divers.”
If you would like to consult with us about an appeal, we ask that you complete the Appellate Consultation form below. This form asks you for basic information concerning your appeal that might allow us to investigate the facts of the case a bit before our initial talk.
INITIAL Consultation
Appeals are unfamiliar territory for a lot of people. For that reason alone, I begin at the outset to explain the process and discuss what options, if any, might be available. Folks very frequently must be educated about what may or may not be reasonable expectations given the posture of the case and the state of the law. Appeals involve legal error, not just bad results.
It is important to note that appeals do not involve any additional evidence. The record is closed and appeals are limited to historical error, that is, legal error that occurred in trial or in sentencing. Because of that, I usually don’t meet clients face-to-face for appellate consultations.
CONTESTING THE VERDICT
Once a trial verdict is rendered, it is a good idea to engage appellate counsel as soon as possible. I prefer to discuss the case at that juncture with the client and/or trial counsel to assess what issues, if any, can be preserved for appeal. If retained before sentencing, I can work with trial counsel on sentencing issues and ensure issues are properly preserved for appeal.
PRE-BRIEF INVESTIGATION
While an appeal is a matter of right, that doesn't necessarily mean that an appeal should be prosecuted. In other words, you might to think twice before agreeing to finance a Hail Mary. I usually conduct a pre-brief investigation of the record and law to determine my client’s chances on appeal. Once that is completed, I sit down with my clients and discuss costs and possible outcomes. If, after this meeting, my clients want to continue, I begin the hard work of additional research and briefing.
BRIEFS ON THE MERITS
Appeals deal with a closed record—hearings that have been decided, evidence that has been introduced, trials and sentencings that have been completed. Ninety percent of the appellate process is the research and drafting of the parties’ briefs. Decisions are usually decided on written briefs alone. Writing a brief is like writing a dissertation under a chess clock. They set out citations to the record—what testimony was given, what evidence was introduced—and argue where legal error may have entered the proceedings and turned the outcome. Sounds easy, at least many callers say, but it isn't. Below are a couple of examples of appellate briefs I've done just to show you the kind of work that must be invested in an appeal.
Oral Arguments
Oral arguments are the stuff of legend, but are rarely granted these days. Appellate judges, in fact, frequently say they haven’t ever been swayed by oral argument. But the court granting argument is a sign that the court believes the appeal has merit.