What to Look for in an Appeals Attorney?

What to look for in an Appeals Attorney?

The most important thing you can do in appealing a case is to hire an appellate lawyer with experience who knows how to and has actually prepared and filed an appeal as both the appellant’s attorney and as the appellee’s attorney. Having the experience of being on both sides of the appellate coin is a tremendous advantage that cannot be understated. Hollywood likes to show attorneys being loud and flamboyant. While this stereotype rarely accurate in the real world even for trial lawyers, it never applies to appellate attorneys. An appellate lawyer really is a lawyer’s lawyer who focuses on details and laws that most attorneys ignore.

To be successful as an appellate lawyer requires command of diverse areas of law. An appellate lawyer needs to have in-depth knowledge of criminal law, criminal procedure, appellate procedure, evidence, and constitutional law. However, legal knowledge is not enough. An appellate lawyer needs to be skilled in both written and oral advocacy but those skills are vastly different than the skills required for litigation in trial courts. Written advocacy in trial courts more often than not involves filing form motions or motions that are recycled from client to client. That simply does not work in the appellate courts. Appellate briefs for an old client cannot be repurposed for new clients without doing a huge disservice to the new client.

The opening brief requires an attorney to be proficient in researching law. The skill required to actually conduct proper legal research is a skill that non-attorneys typically do not appreciate. In fact, every law school in the country has its students take classes on legal research and how to properly conduct research. Especially in cases of first-impression where the law is unclear it is common to cite cases in other states and even cases from different countries. Finding these cases, researching these cases, and analyzing these cases requires a diverse skill set to find these cases and then apply them in your case.

Ultimately, an appellate attorney needs a mastery of the English language and the ability to write clearly, concisely, and persuasively. To paraphrase Mark Twain, the difference between a word and the right word is the difference between a lighting bug and lighting. That saying applies readily to appellate practice many times I have spent hours or more editing a brief searching for the perfect word that says exactly what I want to say.

Appellate attorneys must be able to analyze the appellate record for errors that occurred. Unfortunately, there is no manual or book that lists possible trial errors. The ability to identify the relevant issues from the unimportant issues is a key skill that an appellate lawyer must possess. An appellate lawyer must have keen dexterity to critically analyze case law because there is never a case that is directly on point. Instead, an appellate attorney must piece together the logic of a number of cases to persuade the reviewing court to apply the law as the appellate lawyer frames it. Many times an appellate attorney must fit round pegs into square holes; only skilled appeals lawyers can accomplish this feat. 

Even though appellate courts do not always call cases for oral argument, the ability to argue a case in front of an appellate court is a skill an appellate attorney must have. The oral advocacy required before an appellate court is vastly different than presenting a closing argument to a jury. Closing arguments before a jury are essentially a controlled speech that can be rehearsed and practiced before actually delivering to the jury. Most importantly, a jury will never interrupt an attorney with a question during the middle of the closing statement. Oral arguments before an appellate court are more akin to a one-sided debate favored towards the appellate court justices. Most oral arguments consist of the appellate justices posing questions to the jury and hypothetical situations that must be addressed by the attorney. In my experience, during oral argument a justice will pose a question even before I have said 10 words of my prepared oral argument.

Oral arguments cannot be rehearsed like a speech. Questions that the justice pose during the closing argument cannot be predicted and canned responses to them will not be effective. Oral arguments before an appellate court require an attorney to adapt on the fly and be able to weave your points into your answers to the justices’ questions. All this must be done while under immense pressure and limited time. Most of all it requires an appellate lawyer to have command of all the relevant law not just the case law cited by the parties because often the justices will point to a case or a factual scenario that neither party discussed in their briefs.          

Unfortunately, most attorneys are able to walk the walk and talk the talk but the law of averages holds that most lawyers are really not up to par and they really are not what they try to portray. The question is how can you tell whether the appellate attorney you have actually possesses the requisite skills and experience necessary to win an appeal? In appellate practice a win/loss record is not an accurate barometer on appellate lawyer’s skills. Skilled appellate lawyers are living on the edge of the law and are constantly pushing the law forward. The reality is that appellate attorneys that challenge unconstitutional laws and fight wrongful convictions are constantly running up mountains and often that route has many bumps in the road before you reach the summit. An appellate attorney must be willing to push the law and be willing to fight when other attorneys would rather run or give in. An appellate lawyer cannot be scared that the law is currently against your position, especially when that law is wrong or when the lower court’s decision was mistaken.

The ability to fight when others would run comes from confidence in knowing what the other side is thinking. Appellate prosecutors analyze cases and think like a prosecutor, a mindset that only comes from being an appellate prosecutor. Having the ability to tap into that prosecutor’s mind when needed is instrumental in the difference between winning and losing on appeal. An appellate attorney who was a former appellate prosecutor can use that prosecutorial thinking when representing a wrongfully convicted defendant. Opening briefs are like a game of chess between two highly skilled players and to win that game requires thinking many moves ahead, anticipating the opponent’s potential moves, the counters that you can play, and the consequences and benefits of each move. The ability to anticipate and react appropriately cannot be understated in appellate law.

In an opening brief, an appellate attorney not only needs to focus on the issues relevant to the appeal but also to the what the prosecution’s response will be if you raise an argument under one theory or what the response would be if you raise the same argument under a different theory. The appellate lawyer needs to be able to analyze why one is better than the other. This legal chess needs to be played for every issue and for every argument that can be potentially raised on appeal. Simply raising arguments without knowing the benefits and the consequences will never result in a winning brief. 

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Jaleel Law P.C.
1550 Spring Road Suite 120
Oak Brook, IL 60523