Appellate and Post-Trial Matters
The choice of appellate counsel will likely be your first and most critical decision someone makes at the conclusion of a trial. Hiring an experienced appellate attorney like Joseph Yeckel will increase your chances of success.
Why do litigants choose to retain independent appellate counsel to represent them in an appeal?
- The audience in the appellate court is entirely different than in the trial court. The audience at trial is the “trier of fact”—which may be either a jury or judge. The trier of fact considers the evidence presented by the parties and decides who wins based on which party’s evidence is most persuasive. In an appellate court, three or more judges review the written record of the trial court proceeding to determine whether the trial court committed an error. A good appellate lawyer will view the case from the perspective of an appellate judge, whose opinion has not been influenced by the events at trial and whose understanding of the case is based on the written record and appellate briefs. Trial lawyers often bring their biases and emotions into their appellate briefs to their clients’ detriment. Seasoned appellate attorneys, like appellate judges and law clerks, are removed from emotions and impressions formed during trial.
- Convincing a jury is completely different than persuading appellate judges. Juries base their decisions on the evidence. Juries consider the strength of the evidence, the credibility of parties and their witnesses, and the likeability of the attorneys. These considerations have little bearing on an appeal. In an appeal the single most important factor within control of the parties is the quality of the written briefs. Unlike trials where lawyers deliver lengthy opening statements and closing arguments, appellate courts routinely decide cases without hearing oral argument. Even in cases with argument, the time allotted for argument is usually fifteen or twenty minutes per side. While a powerful oral argument can complement a well-crafted brief, only rarely can an oral argument make up for a poorly written brief. Indeed, while oral argument is important, appellate judges usually do not change their views based on it. Prior to oral argument, the appellate judges have studied the briefs and have formed a preliminary opinion as to how the case should be decided. The main purpose of oral argument is to give appellate judges an opportunity to clarify the record or legal arguments asserted in the briefs.
- Issue selection is critically important in appeals. The best appellate attorneys maximize the client’s chances of winning an appeal by carefully selecting the issues the court is most likely to find compelling and avoiding the instinct to raise every potential issue. Usually, it is a mistake to assert more than four issues. Appellate judges and their clerks believe that an appellant who complains about virtually every trial court ruling does not have much to stand on. Understandably, many trial lawyers have difficulty abandoning a failed argument made at trial. An advantage of hiring an experienced appellate attorney is that he or she has no “pride of authorship” or emotional connection to anything that transpired at trial and, therefore, can evaluate the trial court record in an objective and unbiased manner.
- Appeals and trials are governed by different rules. Attorneys familiar with trial court procedure may find appellate procedure unfamiliar and hostile territory. Appeals must be initiated within a specific time frame, the record on appeal must be ordered and assembled, briefs must be filed in a rigid format, issues may be waived unless asserted properly, and the applicable legal standard is often different than the one in the trial court. Experienced appellate attorneys accustomed to these procedural rules will be better able to assist their clients.
Call Joseph Yeckel to learn how your case can benefit from his superior research and writing skills and comprehensive knowledge of appellate procedure. Download a brief and see for yourself.