7 Questions You Should Ask Any Appeals Lawyer Before Hiring Them

Table of Contents:

• What specific legal errors do you believe happened in my case?
• How much of your practice is devoted specifically to appeals?
• What are the biggest weaknesses in my appeal?
• How do you decide which issues to raise?
• What happens if the appeal fails?
• Can I review examples of your appellate work?
• Have you personally handled appeals similar to mine?

Both state and federal courts in the United States allow parties to appeal a lower court’s (trial court) decision to a higher court (appellate court). Some appellate courts have mandatory jurisdiction, meaning they must hear all the appeals. Others have discretionary jurisdiction, meaning they can choose whether to review a case. An appeal is a review of the trial court’s transcript, not a new trial.

An appellate court does not accept new evidence or testimony. This is why filing an appeal requires a different skill set. Appellate attorneys specialize in identifying legal errors, appellate procedural rules, and persuasive legal writing. As a client, it is important for you to learn how to evaluate whether a lawyer actually understands appellate litigation. Make sure you ask the following seven questions during your first consultation.

1. What specific legal errors do you believe happened in my case?

Even if some errors occurred during your trial, this does not necessarily mean that the appellate court will reverse the decision in your favor. Your attorney should be able to find reversible errors. A good California appeals lawyer identifies errors in the following three categories:

Errors of Law

These errors occur when the judge gets the law itself wrong. Examples:

• Misinterpreting a statute
• Applying the wrong case law precedent
• Failing to dismiss a case that lacked standing

Evidentiary Errors

The judge allowed unreliable expert testimony or excluded a key piece of evidence, which changed the outcome of your case.

Constitutional or Procedural Violations

These errors occur when due process during the trial is not followed. Examples:

• Improper jury instructions
• Lack of personal jurisdiction
• Violations of the Fourth, Fifth, or Sixth Amendments

2. How much of your practice is devoted specifically to appeals?

A trial lawyer wins a case through evidence, oral advocacy, and witness testimonies. A lawyer spending 90% of their time in discovery, depositions, and jury trials does not have the skills and mindset required to win an appeal. In an appeal, the case is 90% won or lost on the written brief.

This is why you need a lawyer who is a technical writer and can spend 40 to 60 hours on a single 10,000-word document. Appellate lawyers look at the transcript exactly how the justices will. They search for reversible legal errors.

Unlike trial courts, appellate courts have a panel of three highly intellectual judges who respond to logic, precedent, and policy.

3. What are the biggest weaknesses in my appeal?

Appellate courts begin with the assumption that the trial judge was right until you prove otherwise. If the appellate lawyer tells you that your appeal is perfect, then walk out.

An issue that was not raised during the trial cannot be raised during an appeal. Your trial lawyer must have objected to that issue during the trial.

Even if there is a clear error, if it is harmless, the appellate court is not going to reverse the decision. A good lawyer identifies and clearly explains if there are any holes in the transcript.

• If the issue was not preserved (objected), then the likelihood of reversal is near 0.
• If the error was harmless, then the likelihood of reversal is low.
• If the judge made a wrong call, then there are moderate chances of reversal.
• If the judge was objectively wrong, then the likelihood of reversal is high.

4. How do you decide which issues to raise?

You cannot appeal every error made by the judge. Appellate judges have limited time. Instead of presenting 10 errors, present two or three errors that are actually strong. A good lawyer prioritizes issues, with errors of law getting top priority and clear procedural mistakes being a secondary priority. Your last resort is Abuse of Discretion, which is when the trial judge made a decision that was:

• Unreasonable
• Arbitrary
• Outside the bounds of accepted legal judgment

5. What happens if the appeal fails?

An appeal is lost when the appellate court affirms the trial court’s decision. A good lawyer explains the following three options available to you.

Petition for Rehearing

This is a request to the same panel of judges who just ruled against you. However, rehearings are rarely granted. File a petition for rehearing only if the court made a serious factual error in its written opinion.

Petition for Rehearing En Banc

You can request the entire bench of the appellate court judges to review the decision of the panel of three judges. However, this option is reserved for cases that threaten to change the legal landscape. For example, the decision of your appeal conflicts with other decisions from the same court.

Petition for Review

Your final option is your state’s supreme court or the Supreme Court of the United States. However, you will have to file a petition first, and the court will decide whether to hear it or not. The U.S. Supreme Court only accepts about 1% of the cases submitted to it.

6. Can I review examples of your appellate work?

Don’t just ask how many appeals they have won. Also, ask them to show you the actual briefs they submitted to the court. An appellate specialist will happily provide public copies of their past briefs. Look for the following:

• Does the lawyer cite recent cases or outdated cases? Appellate law moves fast. The attorney should know how to use new precedents to their advantage.
• Read the summary of the argument. The brief should be clear and persuasive.
• There should be frequent citations to the trial record.

6. Have you personally handled appeals similar to mine?

Different practice areas have unique rules of law that dictate how an appeal is reviewed. For example, criminal appeals focus on prejudicial error and the protection of constitutional rights. Civil/business appeals focus on the interpretation of contracts or statutes. Make sure that your attorney has the expertise and experience required to win your appeal.

Brownstone Law is a trusted appellate law firm that focuses exclusively on appeals. Schedule a free consultation today!

Frequently Asked Questions

1. Can I appeal simply because I disagree with the outcome?

There must have been a reversible error during your trial. You cannot file an appeal just because you disagree.

2. How long does an appeal take?

An appeal typically takes 12 to 24 months.

3. Are appeals difficult to win?

The appellate court begins with the assumption that the trial judge was right. The reversal rate is typically 10% to 20%.

4. Will the appeals court consider new evidence or new witnesses?

New evidence and witnesses are presented during the trial. An appeal is a review of the trial court’s record.