Table of Contents
- Red Flag 1: The Firm Treats Appeals Like “Trial Part 2”
- Red Flag 2: They Quote a Price Without Demanding the Trial Record
- Red Flag 3: Complete Lack of Candor About Your Odds
- Red Flag 4: Failure to Meet Deadlines or Bad Communication During Setup
- Red Flag 5: They Can’t (or Won’t) Answer the Hard Questions
- Conclusion
- Frequently Asked Questions
An appeal is a high-stakes opportunity that can either fix a devastating legal error or permanently lock in your defeat. So, your choices of legal representation really matter, because an appellate court won’t give you a second chance to fix a bad lawyer’s mistakes.
An appeal is not a new trial. It is simply a legal request to a higher court (appellate court) to review the lower court’s (trial court) trial record for errors that may have changed the outcome of your case. You cannot present new evidence or witness testimony before the panel of judges hearing your appeal.
Appellate practice requires a distinct skill set, a hyper-focused writing style, and adherence to strict deadlines. This guide outlines structural, behavioral, and experiential red flags to spot before signing a retainer.
Red Flag 1: The Firm Treats Appeals Like “Trial Part 2”
During a trial, a lawyer introduces evidence, presents facts, cross-examines witnesses, and plays to the jury’s emotions. A trial focuses entirely on answering one question: What happened?
However, the appellate court does not re-evaluate the facts of the case. There is a panel of judges that just wants to know: Did the trial judge apply the law correctly?
So, if the appellate lawyer or firm claims that they can introduce a key document the trial judge ignored or call a new witness, then it is procedurally incorrect under appellate law. They don’t understand the appeals process, and you should walk out of the office. Or, you will lose both your money and your appeal.
Copy-Pasted Briefs
Request redacted copies of appellate briefs they have written for past clients in recent appeals. General litigators simply copy-paste their old briefs and make only small changes when representing a new client. You don’t want your appeal to be a side hustle for a lawyer who lacks specialization.
High Risk of Dismissals
The appellate court may dismiss your appeal if a general litigator simply reargues the facts. Judges can easily spot the lack of technical focus immediately.
Red Flag 2: They Quote a Price Without Demanding the Trial Record
Preserved Errors
A mistake not recorded during the trial cannot be used on appeal. An appellate court lawyer cannot simply listen to the summary of your trial and declare that you have a great case. If the lawyer quotes you a price without reviewing your case files, that’s a big red flag.
Don’t rely on appellate legal services until and unless the lawyer reviews the lower court’s final order and searches the transcripts for “preserved errors.”
An error is preserved when a trial lawyer actively objected to a ruling, a piece of evidence, or a jury instruction, and the judge wrongly overruled them. The appellate court ignores an error that was not objected to at trial.
Retainers Based on 20-Minute Phone Calls
A good appellate lawyer demands the trial transcripts or the final judgment order before asking you to sign on the dotted line. If an appeals attorney offers a flat-fee retainer after a brief consultation, then it is a big red flag.
A legitimate appellate firm, first of all, charges a separate, smaller fee to thoroughly review the trial court record. After analyzing the transcript, they tell you if pursuing an appeal is worth your money. The firm then quotes you a price if you decide to appeal. If a firm skips the first step and quotes for a full appeal, then start looking for another firm.
A firm that blind-bills you has your non-refundable retainer in their accounts. Weeks later, they review the transcripts and find that your trial lawyer failed to preserve any viable issues for appeal. The only response you will get is:
“We looked at the record, and unfortunately, there is nothing we can do.”
Your money is gone. You may also miss the deadline to file a notice of appeal (often 30 days).
Red Flag 3: Complete Lack of Candor About Your Odds
The Statistical Reality of Appeals
It is a harsh reality that the vast majority of appeals fail. Lower court decisions are affirmed 80% to 90% of the time. The legal system gives deference to the trial judge or jury who originally heard the case.
A good appellate attorney will sit you down and give an honest assessment of your specific chances.
If the attorney doesn’t make you feel at least a little bit nervous about your chances of winning an appeal, they are not being honest with you.
Guaranteed Wins and High-Pressure Sales Tactics
If the firm completely dismisses the difficulties of your case and guarantees a victory, then you are dealing with a predatory or incompetent firm. If you hear phrases like “The judge made an obvious mistake, we’ll get this overturned easily,” it is a clear red flag.
Some firms try to force you into signing a contract on the spot. They often downplay your questions about the risks involved or claim that their schedule is filling up. You are dealing with a salesman, not a counselor.
Red Flag 4: Failure to Meet Deadlines or Bad Communication During Setup
Chronology of an Appeal
Appellate courts operate on rigid, jurisdictional deadlines. If your lawyer misses the deadline for filing a notice of appeal, then your case is dead. It does not matter if the lower court judge committed a massive, obvious error.
Sloppy Intake and Chasing Answers
A firm taking days or weeks to return your initial phone calls or emails while you are vetting them is a big warning sign. They will treat your case the way they are treating you.
Ineffective Representation
If they cannot manage their calendar to call a prospective client on time, they cannot be trusted to handle multi-volume trial records and unforgiving appellate filing dates. You are risking your entire case by hiring them.
Red Flag 5: They Can’t (or Won’t) Answer the Hard Questions
Cross-Examine Your Lawyer
When you know how to evaluate a law firm, you know that you are the employer. A competent appellate lawyer expects you to ask tough questions. If a lawyer gets defensive or gives vague answers, they are trying to hide a lack of real appellate expertise.
Deflecting Specific Appellate Realities
Avoid a lawyer who tries to blur the line between trial experience and appellate experience. You need an appellate lawyer for your appeal, but they are boasting about their trial wins or how great they are in front of a jury. They are not familiar with the specific local rules of your particular appellate circuit.
Questions to Ask Before Signing
The following are some key questions to ask an appeal lawyer:
- What percentage of your firm’s practice is dedicated exclusively to appeals versus trials?
- How many briefs have you personally authored and submitted to this specific appellate court?
- Who will actually be reading the transcripts and writing my brief—you, or a junior associate?
- Can you provide a redacted sample of an appellate brief you’ve written and submitted recently?
Conclusion
A good appellate lawyer can help you change the verdict of the trial court during an appeal if a reversible error was made during the trial. However, representing you in an appellate court requires a different set of skills. An appellate specialist must possess three highly technical skills, including transcript analysis, brief writing, and oral advocacy.
Frequently Asked Questions
What is an appeal?
An appeal is a legal process through which you can request an appellate court to review the trial record of the trial court and change the decision if a reversible error was made and objected to during the trial.
Does an appeal mean a new trial?
An appeal is not a new trial. It is a review of the trial court transcript. The goal is to identify legal errors made by the trial judge that directly affected the final verdict.
What is the appeals process?
The appeal process begins with filing a notice of appeal, which typically must be filed within 30 days. After that, the appellate lawyer orders the record and transcripts. After reviewing the records and transcripts, the attorney writes and submits written briefs. If the appellate court grants oral arguments, the appellate lawyer also presents oral arguments. In the end, the panel of judges issues a written decision.
What are the odds of a successful appeal?
The odds of a successful appeal are very low as the legal system gives deference to the original judge and jury unless your attorney can prove that a major reversible error was made.
Can someone appeal because their attorney made mistakes?
Yes, you can. It is known as ineffective assistance of counsel. You must prove that the lawyer performed below professional standards and that their mistake was significant enough to directly cause you to lose your case.
