Important considerations when hiring a lawyer for your appeal
Don’t assume that an experienced trial lawyer is a good appellate lawyer.
The skills necessary to be a good trial lawyer are different from the skills necessary to be a good appeals lawyer. In fact, it’s rare for a single attorney to be good at both, which is why most sophisticated appellants who file an appeal hire a lawyer who specializes in appeals, not the lawyer who litigated (and presumably lost) their case at trial.
Appellate litigation is complex.
Appeals require an intimate knowledge of the law, which is constantly evolving. Thus, trial lawyers frequently are not aware of the most recent legal developments that might influence whether a case should be reversed or not. Appeals are decided almost entirely in writing through the briefs of the parties. Thus, handling an appeal well requires a thorough analysis of the trial court record with knowledge of what to look for and what to ignore, hours upon hours of legal research, and drafting and re-drafting of the written briefs, which must be written at a very high level.
Briefs that are written and presented poorly by trial attorneys who are inexperienced with appeals are simply not taken seriously by the Court of Appeals or the Supreme Court. Moreover, when filing an appeal, the appellate lawyer must be knowledgeable about the arcane procedural rules that govern an appeal. He or she must also be well versed in the different standards of review that govern different legal claims.
It is through deep knowledge of the different standards of review and through years of experience with the appellate courts that an appellate lawyer knows how best to frame and present a given legal issue in a way that maximizes the chances for a reversal.
Considerations when hiring an appellate lawyer.
When hiring a lawyer for your appeal, be wary of the jack-of-all-trades, master of none. Many lawyers practice in multiple areas. For example, a lawyer might hold him or herself out to be an appellate lawyer in many areas of the law, like civil, criminal and divorce. Or, a lawyer might claim to be an expert in family law, employment law, criminal law, and property law. These type of lawyers, frequently called generalists, are often fine to handle your case in the trial court. But this kind of lawyer is probably not well equipped to handle an appeal in the kind of sophisticated manner that is usually necessary to obtain a reversal of conviction.
If you need brain surgery, do you go to a knee surgeon? No. The same is true for criminal appeals. If you’ve been convicted of a crime, and you want to appeal, hire a lawyer who specializes in criminal appeals.
Important questions to ask when hiring your lawyer.
When interviewing a lawyer for your appeal, ask the following important questions, which will reveal to you a lot about their experience level.
- How many appeals have you filed in the last year? In the last three years?
- How many oral arguments have you done in the last year? In the last three years? (If the answer to these questions is zero, be wary.).
- Ask to see a copy of an opening brief he or she has filed and which he or she believes to be representative of his or her work product. As noted above, the appeal is almost entirely decided by the written briefs, so it is easy to see your prospective lawyer’s work.
- Read the brief. Do you think it’s good?
- Do you understand the thrust of the arguments?
- Do the arguments seem compelling?
- Does the brief tell an easily understood and coherent story about what happened in the case?
- Are there typographical errors that indicate sloppy work product? Judges notice these errors and they reflect poorly on your case.
Importantly, you don’t have to be an expert in the law to know if a legal brief is well written. In fact, if the brief is so dense and so difficult to understand that it seems only a lawyer could understand it, then the brief is almost certainly written poorly.
Good legal writing should be no more complex or difficult to understand than regular straightforward writing. The arguments should be easy to follow and easy to remember after you are done reading the brief.