Siskopoulos Law Firm, LLP
|Posted on 30 January, 2023 at 13:30|
10 Best Appellate Attorney Practices:
Whether you are looking to appeal a criminal conviction or appeal a civil court order or judgment, there are a number of practices that should be employed by any good appellate attorney.
Lawyers who are not familiar with appeals often attempt to introduce new arguments or pieces of evidence that were not raised at the trial level. Remember an appeal is not a chance to retry a case, but instead is a legal procedure which is supposed to ensure that trial courts follow the laws. As such, these reviewing courts are concerned with legal errors that were committed by the trial court and an appeal is a chance to address these errors. If the appellate court finds that these errors were prejudicial, the court will overturn the case and order a new trial. This is done in order to ensure that individuals get a fair trial that follows to the law.
The failure to understand the role of the appellate courts can be a major factor in whether you win or lose your appeal. Once you understand the role of the appellate courts, the following is a list of the best practices utilized by lawyers on an appeal:
1. The Best Appellate Attorneys always review the record on appeal.
The record on appeal provides all the information needed to understand which issues were preserved at the trial court level. Preserved issues are always the strongest arguments on appeal.
An appellate attorney needs to support their arguments with citations to the record on appeal. Failing to provide factual citations to your argument is a novice mistake. Without citations to the record, there is no proof the the issue was preserved at the trial level and the appellate court will always ask whether there is proof the issue was preserved.
Finally, knowledge of the appellate record allows an attorney to counter arguments made by the opposing party. By referencing the record on appeal, you can explain to the appellate court why the opposing party's argument should fail.
2. The Best Appellate Attorneys frame the appellate issues properly.
This is where experience matters. Framing the issue on appeal way of telling the appellate court which legal issues it needs to address.
Being able to skillfully frame the issues on appeal is of the utmost importance because it helps the court to understand the law at issue, how the trial court committed error, and how it materially prejudiced the party. All this information must be conveyed in a short and concise statement that makes a strong statement as to how the error tainted the case.
An appellate brief starts with a statement of the issues. It is the first thing the court looks at when the judges begin reading the brief. A properly framed issue can help bolster the appellate attorney's argument and allows the court to understand the legal issues presented right from the start.
3. The Best Appellate Attorneys apply the appropriate standard of review.
Appellate courts need to know which standard of review they are applying to the issues. In fact, most courts require that this information be provided in the argument section of the brief. As such, an appellate attorney should specifically state whether the court is applying the de novo standard of review or the abuse of discretion standard of review.
Many inexperieced lawyers attempt to gloss over this part of the appeal because they either do not understand the standards of review or because they are trying to gloss over a weakness in the appeal. Experienced appellate attorneys address these issues in a straightforward manner. The law can become somewhat complicated, but an experienced appellate attorney has the knowledge and ability to set forth the applicable law when explaining to the court the appropriate standard to be used in deciding the issue.
4. The Best Appellate Attorneys follow the appellate court's rules.
An experienced appellate attorney knows that each court has its own rules and practices. All too often inexperienced attorneys do not review the rules and find that their filings have technical defects. Check the rules and check them often.
5. The Best Appellate Attorneys make sure they cite good law.
While it is easy to work off of old appellate briefs when drafting your new appeal, this is not good legal practice. Do not be lazy.
You are hired to try and win the appeal. You cannot do this by recycling old briefs where you run the risk of inadvertently citing old law that has been modified or, even worse, overturned.
Appellate attorneys understand that the law is constantly evolving. Just as the rules of the court can change, the law that governs the case can also change.
6. The Best Appellate Attorneys format their papers properly.
As an appellate attorney, I can tell you that appellate courts will reject papers that are not properly formatted. Again, the court rules explicitly detail how the brief is to be formatted. Even if you hire an appellate printer, it is still your responsibility to make sure they follow the applicable formatting rules.
7. The Best Appellate Attorneys make appropriate motions.
An appellate attorney usually does not have to make motions in the appellate court or the lower court. There are times, however, when motion practice is necessary.
An appeal is no place to cut corners. It is an appellate attorney's job to make sure that the appropriate motions are made to ensure that the appellate court has everything necessary to make a meaningful decision on the appeal.
Sometimes a motion must be made to address missing portions of the record or transcripts. Other times a motion to vacate sealing orders must be filed. Other times, a motion seeking injunctive relief is required so that the status quo can remain while the appeal is pending. Appellate attorneys know that the wrinkle with motion practice is that you must know whether to bring the motion in the lower court or the appellate court.
8. The Best Appellate Attorneys are aware of page limitations.
A skillful appellate attorney knows that courts wants your brief to remain within their stated page limitations. While it is sometimes necessary ask the court for a waiver of this rule, routinely asking the court to exceed page limitations should be avoided. Attorneys experienced in appeals know how to get their point across while adhering to the page limits the court has set.
9. The Best Appellate Attorneys draft a compelling argument.
This takes time. An experienced appellate attorney knows how to draft a compelling argument. This type of argument weaves the facts and the law together and succinctly explains to the appellate court why its intervention is appropriate.
A lawyer who does not regularly handle appeals often makes numerous mistakes in drafting the appellate argument. A lawyer should not simply resubmit papers that were filed in the lower court. Another novice mistake is reciting pages upon pages of law with no explanation of how this law relates to the facts of the case on appeal.
Drafting a compelling argument is skillset that takes years of practice. This is where hiring an experienced appellate attorney is invaluable.
10. The Best Appellate Attorneys are prepared for oral argument.
Writing the brief and perfecting the record are important aspects of an appeal, but you also need to prepare for oral argument. Oral argument is where an appellate attorney is questioned by a panel of appellate judges as to the strengths and weaknesses of the case. The judges on the appellate bench have read all the papers and are familar with the portions of the record cited in the briefs. They will often have very tough questions and an appellate attorney needs to be prepared to answer them.
With strict time limitations on oral argument, an appellate attorney knows that you must be prepared to answer any questions as to the law or the facts on your appeal instantly. This requires hours of detailed preparation prior to argument, and failure to prepare for this important stage can be extremely detrimental to your appeal.
Written by: Alexandra Siskopoulos, Esq.
Telephone: (646) 942-1798
Email: [email protected]
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Categories: Appellate Attorneys