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Author johnbsims3
Admin Male

#1 | Posted: 24 Nov 2006 19:00 

There has been a judgment entered in a trial court. Generally, only then can an appeal begin (there are certain exceptions in special cases for interlocutory review by an appellate court, but that is beyond the scope of this essay). A Notice of Appeal must be filed very quickly in the trial court in order to obtain the right to appeal. Depending upon the jurisdiction, and the kind of case, the window of time for filing a Notice of Appeal can be as short as ten days or as long (but never longer) than sixty days after the entry of judgment by the clerk of the trial court.
The party filing the Notice of Appeal and wishing review of the trial court judgment by an appellate court is called the Appellant; the party defending the appeal is called the Appellee. To make matters interesting, the appellee sometimes files its own Notice of Cross-Appeal if it wishes to take issue with some action or decision of the trial court, and becomes a Cross-Appellant as well as an appellee.
A transcript of the proceedings in the trial court must be ordered from the court reporter, and the clerk must assemble the record; that is, put together a package of documents for the appellate court which will help it understand what went on in the trial court. Except for indigent criminal defendants, arrangements have to be made to pay the court reporter for the work in creating the transcript.
This process of obtaining the transcript and having the clerk of the trial court assemble the record can take quite some time. In very busy courts, many months can go by before it all comes together and can be sent to the appellate court. In some jurisdictions, it is not unknown for a year or more to go by.
Once the transcript has been produced by the court reporter and the record on appeal has been assembled and forwarded to the appellate court clerk, the case will be docketed in the appellate court and assigned a case number. (A Federal Court of Appeals may docket the case and assign a case number before the transcript has been finished, in which event counsel will be forced to keep filing motions to extend the time for filing the brief until the transcript actually exists).
Once the case has been docketed, the appellate court clerk notifies counsel and the clock begins to run for filing the Brief for Appellant. In most jurisdictions, counsel has forty days in which to file a Brief for Appellant; the Appellee then has thirty days to file its responsive Brief for Appellee; and the appellant can then file a Reply Brief within fifteen days of the filing of the Brief for Appellee. As a practical matter, in any but the very simplest cases, counsel will need more than forty days to file the brief, and it is customary to file a motion for more time. Most courts liberally grant at least one or two enlargements of time; a few have become difficult to obtain enlargements from in recent years after the first motion for a extension.

The most difficult part of the decision on whether to file an appeal is determining whether a real issue exists which can conceivably result in relief for the appellant from the judgment in the trial court. In civil cases, expense and delay are factors to consider; even if a strong issue can be defined, is it worth it to pay for the legal work on the appeal and put up with the delay inherent in the appellate process instead of settling the case now? In criminal cases, there is seldom a question about whether to appeal, since the defendant's liberty (and sometimes their life, in death penalty jurisdictions) is usually at stake.
Trial counsel has probably already identified issues which can be raised on appeal, but skilled and experienced appellate counsel can often find issues missed by trial counsel through a careful study of the transcript and the record on appeal.
Clients often misunderstand what kinds of subjects can be addressed to an appellate court as issues on appeal. Facts are determined by a jury (or by a judge if the case was tried without a jury). An appellate court cannot and will not retry the case on the facts. It can only consider issues which allege an error of law in the trial court, not factual questions such as whether particular witnesses were believable. "The witness lied" is not an issue which can be raised on appeal, no matter how silly and incredible their testimony may have been. The credibility of witnesses has already been decided by the fact-finder (the jury or judge) who was in a better position to evaluate the mannerisms, appearance, bearing, and other factors involved when a witness testifies. The appellate court has only a cold record in front of it, not real people, and lacks the ability (and the inclination, not to mention the power) to revisit the credibility of trial witnesses.
What an appellate court can and does do is rule on whether the trial court made mistakes of law which justify reversing the judgment or modifying it in some way to bring it into line with the law. Issues as to whether evidence was properly admitted; whether the instructions on the law delivered to the jury were correct; whether the evidence, viewed in the light most favorable to the winning party, was sufficient to support the verdict; whether the jury was fairly selected; whether pretrial publicity infected the jury; whether the trial court denied the appellant a fair opportunity to present its case to the jury by improperly refusing to admit testimony or other evidence; whether in criminal cases the sentence was authorized by law (in the Federal Courts of Appeal many appeals concern themselves only with whether the trial judge correctly applied the United States Sentencing Guidelines); and similar questions, are all proper to raise on appeal.
An experienced and skilled appellate attorney will select those issues which are strongest and have the greatest chance of winning some relief for the client, and will ignore marginal or peripheral issues as long as there is at least one good issue available to argue. Many clients believe that the appeal has a better chance of succeeding if it is chock full of issues. This is simply mistaken. An appellate judge who reads flimsy arguments on marginal issues will not be in the frame of mind to be easily impressed by a strong issue or issues argued elsewhere in the brief. Minor or thin issues raised on appeal will detract from the credibility and character of the entire case. It is simply not true that chances of success are improved if one throws a stack of issues at a court in hopes that one may work.
In order for an issue to be given full review by an appellate court, counsel in the trial court must have objected on the record to whatever it was that is now claimed to be error. If no objection was made, the issue will be reviewed only for "plain error." This means that the appellate court will not reverse the judgment unless the error was so obvious and significant that no judge in his right mind would have committed the error; there must be a real risk of a miscarriage of justice in order for relief to be ordered. Because of the liberty interests at stake, appellate courts appear to find plain error more often in criminal cases than in civil cases, as a practical matter. The exception is to this rule is for structural error; that is, error which affects the fundamental fairness of the proceeding itself, such as a defective instruction defining reasonable doubt in a criminal case. If there has been structural error, reversal will occur even if there was no trial objection if the appellate court agrees that structural error occurred.
Also, even if there has been an objection at trial, and the trial judge erred, the appellate court must decide if the error was harmful. If the error was harmless, that is, did not really prejudice the appellant in any way, no appellate court will reverse the judgment based on that error. This is called the "harmless error doctrine," which is applied by appellate courts through "harmless error analysis." Again, a very few kinds of errors do not lend themselves to harmless error analysis.
Some clients, having been propagandized for years by movies and television programs showing people winning appeals on "technicalities," believe in the "magic wand" theory of the law. That is, a cunning lawyer will throw a mass of issues at an appellate court, wave a magic wand, and the judgment is reversed. Real life is different. Appellate courts try their hardest to uphold judgments, because there is a great social interest in the finality of judgments. Instead of looking for ways to reverse, appellate judges look for ways to affirm. The appeals that win are those which show the court that something fundamentally unfair or improper happened in the trial court, and the appellate court most likely will then reverse the judgment in order to preserve the integrity of our system of law.
It is counsel's job to identify the errors which took place in the trial court, argue that they were in fact errors, and that the appellant was harmed as a result. A skilled appellate lawyer will do everything possible to persuade the appellate court that justice will be best served by reversing or modifying the trial court judgment. There is nothing magical about any of this. Hard work, experience and skill are the key to successful appellate practice.

The Briefs
Counsel for the appellant must file a brief which sets forth the procedural history of the case (what happened when in which courts) called the Statement of the Case; a Statement of Facts, summarizing the evidence introduced in the trial court; an Argument, which advocates the legal basis for the appeal as to each error claimed, with citations to statutes, rules and case law as appropriate; and a Conclusion, setting out the relief requested from the appellate court.
The filing of the Brief for Appellant is the most important event in the life of the appeal. It sets out the appellant's entire case for the appellate court.
The brief is limited in length to fifty pages in most courts, double-spaced in 12-point or larger typeface. Some attorneys attempt to defeat the page length limitations by crunching the lines closer together and by drafting large numbers of footnotes, which don't have to be double-spaced and which can be in a smaller typeface in some jurisdictions. This is a mistake. It irritates the judges who have to read it. Almost all appeals can be well briefed in fifty pages or less without resorting to word processing tricks, and an excessive number of footnotes are simply annoying to appellate judges. In fact, if it is at all possible, footnotes are best left out all together. The brief is an effort to persuade an appellate court; it is not a law review article designed to impress anyone with the writer's erudition. In most cases, footnotes are used to string together citations of cases which have only marginal value to the issues being argued, and are best omitted. The judges studying the brief will have a much more pleasant experience reading the brief (and hopefully being persuaded by it) if there are as few footnotes as possible breaking up the text. If your attorney is one of those who believes that footnotes on every page will impress the client and the court, they are misguided.
The appellee will file its Brief for Appellee in response to the Brief for Appellant. This brief is reactive, in that the issues have already been formulated by the appellant, and the appellee has the task of persuading the court that relief should not be granted.
After the Brief for Appellee has been filed, a Reply Brief is permitted from the appellant. Reply briefs should be filed only if the Brief for Appellee raised or discussed an issue in a way which was not fully addressed in the Brief for Appellant. If the appellant's position was set out fully and well in the Brief for Appellant, and there would be little more to add in a Reply Brief, then that brief should not be filed.

Oral Argument
At some point after the last brief has been filed, the clerk of the appellate court will schedule the case for oral argument before the appellate panel. Federal courts of appeals and state intermediate appellate courts sit in panels of three judges. State supreme courts and the Supreme Court of the United States sit in panels of seven or more judges.
Counsel will appear in person before the panel on the appointed day and argue the case. Oral argument is an opportunity for the parties to answer questions from the judges and to focus the court's attention on important aspects of the issues. Clients attending oral arguments are often surprised at how scholarly and polite they are. A professional is expected to intimately know the case and to attempt to persuade the court of the merit of its position. They are not expected to exhort the court or pound on the podium, and no competent lawyer will ever do this. It is a calm and thoughtful occasion, with mutual respect apparent between all participants.
Clients must realize that nothing can be predicted on the basis of how the judges behaved at oral argument. Sympathetic or seemingly hostile questions may simply be a judge's way of trying to fully understand an issue they are interested in after having studied the briefs. Clients are sometimes surprised when they win after the bench appeared to be trying to knock holes in every argument advanced by counsel at oral argument, but they should not be. The judges were trying to focus the argument, and asking tough questions is often an effective way to accomplish that. Likewise, victory is not assured because a few seemingly sympathetic questions were directed at counsel.

The Decision
Some months after oral argument, the court will issue its judgment, along with a written opinion explaining its decision. The written opinion will be permanently published in a hardcover book, and will then become precedent to guide future cases.
Reaching this point of decision may have taken two years or more. It is not unusual for an appellate case to take two years from the filing of the Notice of Appeal to the issuance of the appellate court's decision. It is hard for clients to be patient during that long period, but there is virtually nothing counsel can do to speed up the process. There are simply too many cases and not enough judges. Delay is an unfortunate part of the appellate process.

Where Can We Go From Here?
If you've lost the appeal, your chances of further review are limited. In most states, appeals are considered in the first instance by an intermediate court of appeals; in Massachusetts, for example, the Massachusetts Appeals Court hears most appeals in the first instance, and the Supreme Judicial Court may, in its discretion, provide further appellate review. You generally have no right to further appellate review by a higher court, and must petition the higher court for such review, arguing that the intermediate appellate court erred in its application and analysis of the law, or that the law must be modified or extended to achieve substantial justice. Chances are better at receiving further appellate review in a State system than on the Federal level, but they are by no means a sure thing.
For all practical purposes, a decision by a Federal Court of Appeals is final. A suggestion for a rehearing or a rehearing en banc by all active judges in the circuit can be filed, but such review is extraordinary. If a petition for certiorari is filed in the Supreme Court of the United States, about a hundred cases a year are granted review out of many thousands which seek it.
If a State's highest court has issued a decision (or denied review), a petition for certiorari may be filed in the Supreme Court of the United States only if the questions at issue in the State court involved the laws or the constitution of the United States. Purely State law questions are never heard by the Supreme Court. The chances are poor, even if the jurisdictional hurdle can be overcome, that the Supreme Court will grant certiorari in a particular case.

Author johnbsims3
Admin Male

#2 | Posted: 24 Nov 2006 19:01 

This essay is intended to provide very basic advice to attorneys who are handling an appeal for the first time. It is not intended to be comprehensive. There is so much that could be taught to lawyers just beginning to take on appellate work that the very task is daunting. This essay will be updated and added to frequently; this initial edition is only a skeleton of what I hope it will evolve into over time.

You have been retained by a private client or appointed by the court to represent an indigent criminal defendant on appeal. The first step is to sit down with that client and discuss the case in detail. What things seemed unfair in the trial court to the client? Often error overlooked by trial counsel is spotted by the non-lawyer whose interests were at stake. It is always a good idea to take clients seriously and listen to their concerns.
On the other hand, clients sometimes have unreasonable expectations from their appeal. They must be made to understand that the appellate process is a long one and that they must learn to be patient and not call you every week asking for a progress report. They must understand that until the trial transcript has been provided by the court reporter, you will not have any way to determine accurately whether particular issues can be raised on appeal with some prospect of success. They must understand that the great majority of trial court judgments are affirmed, and that it will take you a lot of time, work and skill to convince an appellate court that this particular case is worthy of reversal or modification of the judgment.
You must explain patiently to the client why certain issues may be viable and why others have no value. Never allow the client to bulldoze you into briefing issues which are absolutely meritless, or allow the client to persuade you to throw a dozen issues at the court when only one or two really strong issues are available. You must exercise your professional judgment at all times. Letting the client dictate issue selection is a mistake which could damage your reputation as an attorney and hurt the client's chances of succeeding on appeal.
Likewise, if the client insists on the use of stronger language in describing the conduct of the opposing party or parties, advise them that this is not a proper forum for personal attacks. Use your own professional judgment in choosing the language in your Statement of Facts. Also, do not allow the client to pressure you into distorting or mischaracterizing the evidence in the Statement of Facts.
Do not promise a particular result to the client. It is quite appropriate to give the client a fair appraisal of the prospects of success, but you must make it clear that you can not guarantee how the appellate court will decide the case.
Always have the client sign a Fee Agreement setting forth exactly what your services cost and what those services encompass. If the appeal is unsuccessful and further appellate review can be sought, make it clear in the Fee Agreement that additional fees will be required for any work performed after a final judgment has entered in the present appeal. The Fee Agreement should state that all reasonable expenses are the responsibility of the client. If the work is being performed for an hourly fee, it should be stated; if funds are deposited for the client in your trust account to bill against as work is done, state the amount of the initial deposit. The Fee Agreement should state, in the event that the representation is being provided for a flat fee, the amount of that fee. You and the client should agree that you are entitled to a reasonable, clearly stated hourly fee for work performed if a flat-fee client discharges you for any reason before the case has concluded.

Carefully study the trial transcript and the record on appeal. It is often helpful to first read the transcript without taking notes, as if you were reading a novel, and then go back over it again, taking careful notes. The first reading will sometimes help you to spot potential issues which might not have been as apparent in a page-by-page note-taking approach because of the "not seeing the forest for the trees" problem.. Study the case file of trial counsel, if you were not the client's lawyer at trial. Sometimes a memo or research note will lead you to a valuable issue which was not clear from your reading of the transcript.
Talk with trial counsel. They often will recall things which may cause you to go back to the transcript and reevaluate the viability of an issue.
Look at the statutes involved, if any. Ask yourself whether an interpretation of a statute is a fair or correct one, even if it is of long-standing.
After having done all this, the issues available on appeal should be apparent. Identify those issues which are the most compelling to state and argue in your brief. All potential issues should be thoroughly researched before deciding which issues are most likely to achieve success for the client. Research the decisions of other courts and jurisdictions to see if any favor your client's position and can be argued as persuasive authority. This is easier to do today with the availability of Lexis and Westlaw.
Narrow your choice of issues and abandon nit-picking or marginal issues which have little likelihood of success. The court will not be as impressed with the case if a strong issue is accompanied by several flimsy issues.

Read the appellate rules of your jurisdiction and follow them carefully. There is no excuse for submitting an overlength brief, a brief with improper page margins, or the wrong color cover. Ask other lawyers in your area with appellate experience about the unwritten customs and practices of that appellate court. Ask the clerk of the court if you have questions about any of the rules. A non-complying brief loses credibility the moment a judge picks it up, if the clerk hasn't already returned it because it failed to comply with the rules.
The Statement of the Case should track the procedural history of the case in the trial court with references to the docket.
The Statement of Facts is your opportunity to place the client's case in the best possible light at the outset. Being very careful not to misdate any facts or omit important facts, you should arrange your Statement of Facts to emphasize the merit of the client's case. Organize the facts in a logical manner; do not be bound to the order in which the evidence was admitted at trial. Use sub-headings to break up and accent topics. An introduction may be appropriate before a long Statement of Facts in a complex case, giving the court an overview in a few paragraphs. Make certain that accurate record references are provided for each fact set forth.
Humanize the client. Refer to him or her (or it, with a company or organization) by name as often as possible, instead of always writing about "the plaintiff" or "the defendant."
The Argument should be organized to place the strongest issues first. The court's first impression of your position should be as favorable as possible. Weak or marginal issues should never be argued at all, unless they are all that is available.
The issues should be stated succinctly and clearly. "The police conducted a search in violation of the Fourth Amendment to the United States Constitution and the Constitution of the State," is too vague and unnecessarily verbose. The court presumably knows which constitutional provisions are implicated in a search and seizure question, and would very much like to know what the client claims the police did to violate his or her rights. "The trial court erred in denying the defendant's Motion to Suppress, where the police searched Mr. Defendant's family home in the middle of the night without a search warrant or exigent circumstances," is better. It informs the appellate court more clearly what the issue involves.
Arguments should weave together the facts of the case and the applicable law favorable to the defendant. Adverse precedent should be carefully distinguished, but never ignored. If a particular case is valuable, tell the appellate court how it is similar to the present case and quote the actual language of that decision in your argument. Avoid stringing together long lists of citations. Prior decisions are tools which are most effective when used with precision, accompanied by a discussion of why the particular case supports the present position of the appellant or appellee.
The Conclusion should precisely define the relief requested.
Keep the number and length of footnotes to an absolute minimum. If it is possible to write the brief without any footnotes at all, do so. Footnotes break up the continuity of the argument and are annoying to the reader. The purpose of the brief is to persuade, not to impress the judges with counsel's scholarship. A brief is not a law review article.
Revise the brief several times before filing. Put it aside after finishing the first draft and look at it again a day later from a fresh viewpoint. Ask other attorneys to review it and listen to their advice. Dispose of surplus language and unnecessary argument. Make the brief as short, tight and effective as possible.
Reply briefs should respond to questions which were not fully and adequately addressed in the principal brief. If the Brief for Appellee did not raise any questions which were not well covered in the Brief for Appellant, then a Reply Brief should not be filed. Don't feel that you have to file a Reply Brief just because your client expects you to file one. Explain what the purpose of a Reply Brief is to the client and how irritating it is for appellate judges to read a rehash of an argument already made perfectly well in the first brief.

Oral Argument
You should thoroughly prepare for oral argument by reviewing the briefs, the research, and important parts of the record. Outline the main points which you wish to address at oral argument and keep a mental picture of the outline when you approach the podium in the courtroom. It is unlikely that you will have a chance to effectively refer to any notes or outline during your argument. You must be prepared well enough to effectively argue on your client's behalf without written aids.
Judges will ask you questions during argument, some of which may seem pointed or even hostile. You must respond clearly and succinctly, and fully answer the judge's inquiry. Questions from the bench are intended to define the boundaries and substance of an issue, and it is the style of some judges to put counsel on the hot seat in the process. Remember that the judge would not ask the question if they were not interested in the issue.
Don't be surprised to find that your fifteen minutes of argument are up without every issue being covered, or discussed in the depth you would have preferred. There is only so much time allotted to each party, and the way you can use the time is defined by the court's questions. The judges have the briefs of both parties and regard oral argument as an opportunity to talk about the case with counsel. It is not a disaster if every aspect of the case didn't get argued at oral argument.
Be respectful and professional in your demeanor before the court. Don't overstate or exaggerate your client's case. Be a committed advocate, but state your position logically and calmly.

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