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When to Hire an Appellate Lawyer

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To consider whether an appellate attorney is needed for your case, let’s start by explaining what an appellate attorney is and does. An appellate attorney handles appeals (review by a higher court) or petitions after there has been a trial or hearing resulting in a judgment or order in the lower court. (Sometimes a petition can also be filed regarding the inaction of the lower court, such as a refusal to rule on a pending motion.)  These are attorneys who have made appellate law their practice. The higher court to which one can appeal a decision of the lower court or administrative government agency (lower tribunal) is called the appellate court.

If you disagree with the decision of the lower tribunal or believe that the outcome received was in error, and there is a good faith basis, you have a possible grounds for appeal (of a final order or certain appealable non-final orders) or grounds for a petition for a writ of certiorari (to quash certain non-final orders that would not otherwise be appealable until the end of the case in the trial court) or other petition for extraordinary writ.

Or, you may have won in the lower tribunal and the other side is appealing. If this happens, it’s in your best interest to obtain an appellate attorney as soon as possible to make sure procedures are followed that enable you to have recourse (to defend the appeal). The appellate attorney can strategize how to best defeat the other side who is trying to appeal (potentially pressuring them to settle).

While all attorneys have some understanding of the appellate process, not all of them are highly skilled at interpreting the appellate rules and the black letter law from the original trial and developing the most effective appeal strategy. Nor are they necessarily familiar with the most effective methods of dealing with appellate judges.

They also may not know all the time frames and deadlines involved, which can jeopardize the appeal. In most cases, there is great benefit to having an appellate attorney prepare and present appeals. Here we discuss this in more detail.

There are primarily two circumstances that dictate the hiring of an appellate attorney: when you want to ensure that you present the best possible appeal, and when you are facing a particularly challenging or complex case.

Thinking from the Judges’ Perspective

The appeal will be decided by a panel of three very experienced judges.  A point to consider is, “Will the attorney handling the appeal have the ability to analyze legal issues from the appellate judges’ perspective?” This is a key appellate attorney trait that can greatly benefit your appeal. This is because the judges have to consider the “standard of review” and the long-term effects of their decision, and how it could change the future direction of a certain law or public policy. This looking forward at the potential effects of the appeal decision helps an appellate attorney decide the language and content of the appeal.

Because Quality Counts

Appellate judges appreciate appeals that are well prepared and delivered, incorporating pertinent information in the right way. This is a skill that a strong appellate attorney possesses. An appellate brief filed by a well-known law firm or attorney isn’t necessarily high quality or useful. The brief is only as good as the skills, research, and knowledge of the person who created it; and if that person does not have appellate experience, you’re risking the entire appeal’s outcome. Also, when an attorney has been deeply involved in a case for months or even years, they may lack the perspective and detachment that an appellate attorney will have. Appellate judges are not impressed by emotional “jury arguments.”  Your appellate attorney will bring a fresh perspective and create an appeal based on fact and law, not emotion.

Writing Is Everything

As you decide when to use an appellate attorney, you should examine the writing ability of the attorney or law firm handling the appeal. The most brilliant trial lawyer may not be a great writer. Outstanding writing skills are a must for preparing a good appeal. A truly well-written brief will please the judges. The appellate lawyer knows the exact points of law that apply and how to best present them.

Something Appealable Happens During Trial

During the trial, you would want an appellate attorney to consult with when there is an interlocutory (non-final) order that you think should be appealed. The appellate attorney can evaluate whether it is appealable, and can give an estimate of the chances of winning on that appeal. (Or the appellate attorney can help defend the order if it is being challenged – this is the other side.)

Preserving the Record

Yet another factor in deciding if you need an appellate attorney is this: Having an appellate lawyer involved with the pre-trial motions, during the trial itself, and in post-trial motions will ensure that the appropriate argument, issues, and evidentiary objections are properly preserved for appeal. This is a proactive way to help your case should the trial decision not go in your favor. (This is also true should you find yourself defending against an appeal).

Complex Cases

Hiring an appellate attorney is especially helpful when your case is complex (or the trial was complex), because the appellate attorney will review every element of the litigation with a fine-tooth comb, possibly finding things the client or their trial attorney missed. The appellate attorney has the ability to identify, early on, the key factors that would be pertinent in an appeal.

It’s Just Good Business

From a business perspective, it makes good sense for a non-appellate attorney to obtain an appellate lawyer either to handle the appeal completely or to draft the motions and briefs for you. It saves you time as a trial attorney, which you can better spend on your own area of focus – and on obtaining new clients. And it increases your chances of winning  the appeal to uphold a favorable judgement or of reverse a bad decision.

Critical Research

Law is based on precedent (previous case law). You need to know all applicable cases, and appellate attorneys perform the research that identifies correct precedents and persuasive law from other jurisdictions.

Besides handling appeals and petitions in the appellate court, the appellate attorney can research and draft motions and pleadings to assist trial attorneys with difficult questions of law.

An appellate attorney like Robin Bresky not only helps pursue or defend appeals, but also provides litigation support and trial support services such as researching and drafting pleadings and motions, prepping expert witnesses, helping you preserve objections and depositions, and recommending strategy. When you need overall guidance on black letter law, it’s a good time to bring in a skilled appellate lawyer.

To discuss having The Law Offices of Robin Bresky assist you with your pre-trial litigation, trial, appeal, or appeal defense, contact us here or call 561-994-6273.

 

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