The legal process is foreign and intimidating for the uninitiated and is especially so when the case ends at the trial level and the appellate process begins. If you or a friend or family member has been convicted of a crime, you are faced with a difficult set of choices to make quickly at a time after something unthinkable has happened to you -- you have been locked up without a bond or, if not locked up, you have been labeled a criminal and are suffering consequences of that like a lost license or a lost job. The appellate process encompasses everything that makes the legal system foreign and multiplies it times ten. If you find yourself looking for appellate counsel, it is important to keep a couple of things in mind as you begin looking for a lawyer and a few expectations that you should have in an appellate lawyer.
The Lawyer Should Respond to your Call Quickly and be Available to Hear Your Story Quickly
While an appeal moves slowly in the long run, there are some key important deadlines that will approach as soon as your case ends at the trial level. If you miss those deadlines, you could forever forfeit your right to appeal or may spend the critical early days of your appeal getting your case on track. Competent appellate counsel may need to spend more time on your case just getting it on track, and your fee may be higher as a result.
The bottom line is that as soon as your case ends at the trial level, you should begin trying to find appellate counsel. For a trial level case, your clock starts ticking the moment you are sentenced. In a probation revocation, it begins when your probation is revoked. For irregularities in plea and sentencing, the clock begins ticking when sentence is pronounced.
Competent appellate counsel is aware of how critical the first days after conviction are and should return your call or email quickly and have a significant enough conversation with you so that you each understand the situation even if he cannot meet you right away. If you sense that prospective counsel is delaying too long in returning your initial inquiry, then you may wish to seek out other counsel (within one business day is a good rule of thumb).
The Lawyer Should Devote a Significant Portion of his Practice to Appellate Representation
Overall, the appellate process is more rule-driven and can be more technical than trial work. It can be easy to default your appellate rights or make mistakes that can result in significant delay. Furthermore, as much as the process appears to be driven by the black and white law, there are personalities. Just as it was important for your trial lawyer to know the personalities of the people you encountered (from the judge, to the jury, to the clerk, to the deputy at the metal detector at the door), appellate counsel should be acquainted with some of the personalities in the court where your case will go. That is not to say that he should claim to be friends with the judge or justice (in fact, you should perhaps run away from lawyers who make boasts such as that), your prospective lawyer should practice enough in the relevant court to have a professional relationship and understand some of the procedures, both written and unwritten, in the appellate court clerk's office. Your lawyer should know your panel -- your legal "jury" -- in terms of their judicial philosophy, leanings, and temperament.
Your lawyer should know how to select issues, write an appellate brief, and communicate with the court at oral argument. Also, since the beginning of some appeals will involve a hearing at the trial court level where he will question witnesses, he must also know how to question friendly and hostile witnesses.
That is to say that it is not necessary that the lawyer devote his practice entirely to appellate cases (sometimes you may benefit from his expertise as trial counsel as well). However, appellate practice should comprise a significant portion of what he does. It is important to find out how much experience he has in appellate practice and to get an understanding of his experience in the legal community.
There are some key ways to assess experience
- The number of reported cases where he has been counsel of record (reported cases are cases that are published and stand as precedent for one or more points of law)
- How many years has he worked in the appellate courts?
- What are his most significant cases to date?
- What percentage of his practice would he say is devoted to appellate representation?
- Who are some other attorneys in the community who could speak to his experience as an appellate attorney?
- What professional organizations is he involved in?
He Should Be Able to Make You Feel More at Ease and Help you Grasp the Processes and the Difference Between the Appeal and the Trial
If you or a loved one has been convicted of a crime, it is natural to feel a range of emotions, including fear, anger, sadness, loneliness, and despair. You may feel betrayed by a witnesses who brought evidence against you or the process in general. You may feel like you would like to punish the prosecutor who brought the case, the officer who testified, and the judge for the way you feel that he handled your case and treated you.
Unfortunately, the appellate process exists to correct legal error and can sometime be a dissatisfying forum for what you feel like you and your case needs.
Appellate counsel should listen to all of your concerns and should help shift your focus from the trial to the appeal. The appellate courts will generally not second guess the jury or the trial judge's determination of whether a witness told the truth. All of the facts will be viewed as if the State's witnesses told the truth, and appellate counsel will be largely stuck with the record as recorded in the pages of the record.
Appellate counsel must understand where you are and what your concerns are, but he must also help you grasp some of the fundamental differences between trial and appeal, and he should prepare you for the fact that the winning issues on appeal may be technical and abstract.
You should leave the first consultation with appellate counsel feeling like you have been heard but with a general understanding of some of the distinctions and with a big-picture view of what will happen.
He Should Have an Honest Conversation with you about Whether You Should Appeal and What the Odds in General Are and Why he May Not Know Your Odds in Particular
An overwhelming number of appeals are unsuccessful, particularly in the criminal arena. Your lawyer should never promise a result and should always enter into discussions with you with an honest appraisal of just how difficult it can be in many cases. The lawyer should work with you to help you determine whether an appeal is a good idea in general. You should feel like you are getting advice not that you are being sold something.
Prospective appellate counsel should also explain that he may not know what the issues are and will not know the strength of your case until the transcript comes in. He may be able to figure these things out generally through a discussion with the client, with trial counsel, by a review of the record available at the time, and perhaps in discussion with the prosecutor. If trial counsel is promising you something or being overly-optimistic, then you should evaluation whether he has your best interests at heart.
That is not to say that some case (and maybe most) must be appealed simply because the sentence or other consequences is worth even a slight chance of success.
Half of an attorney's job is to do everything he can to get you the best possible result. The other half is making sure that you are as comfortable as possible with an attorney-client relationship that is open and honest. Use the first steps of the hiring process to gauge how good a fit you and prospective counsel will be in each area.