Frequently Asked Questions

Generally law school does much to prepare someone to become an appellate attorney.  I learned to be an appellate attorney by working for an appellate justice on the First Court of Appeals in Houston. There I took the record and the briefing and wrote an opinion for a justice. I wrote one opinion per week for a year. It was in that process that I learned to be an appellate attorney. There are, of course, other ways but very few law school programs prepare students to become an appeals attorney.

Most simply an appellate lawyer represents a client on appeal. Some attorneys represent clients both at trial and on appeal, but most attorneys choose to either represent clients at trial or on appeal.  An appellate attorney takes responsibility of a case after a verdict or judgment.  At that point there are a variety of decisions to make about post-verdict motions and securing the record. But the appellate attorney’s primary job is to write and file the brief. 

Generally, an appeal takes eighteen months from the time that the sentence is imposed until the opinion issues.

Appellate bonds exist. Whether an individual is eligible for an appellate bond is determined by Article 44.04 of the Code of Criminal Procedure.  Under Article 44.04, a person is eligible for an appellate bond if their sentence is less than 10 years and if the person has not been convicted of an offense under article 42A.054(a). But article 44.04 does not make bail a requirement. Instead an appellate bond is generally left to the discretion of the trial court judge.

Generally the trial concerned facts and the appeal concerns the law. The appeal often looks to small-grained-legal issues such as the propriety of the jury charge or the validity of the indictment. Facts are important to an appeal, but they are important in the context of the legal argument.

No responsible appellate attorney will tell you what your chances are on appeal. In most cases the appellate attorney, when he or she appears in the case, does not know what your chances are. Only when the appellate attorney has had a chance to evaluate the record (every word spoken in trial and every document filed in the trial court) can the attorney discuss the strengths and weaknesses of the appeal.

In most cases the direct appeal is the end of the case. When the intermediate-appellate court publishes an opinion the case is usually finished. But in other cases it will be important for the appellate attorney to file or respond to motions for rehearing and motions for en banc reconsideration. And in some cases the case might go to the highest appellate court. Moving to the apex court requires writing or responding to a petition for discretionary review (state) or a writ of certiorari (federal). In criminal cases if the defendant/appellant is still without a remedy when the appeal has concluded he or she can consult with their attorney and file a post-conviction writ of habeas corpus (state) or a 2254/2255 motion (federal).

Any party involved in a federal court case who is dissatisfied with the final judgment can file an appeal. This includes defendants in criminal cases, plaintiffs or defendants in civil cases, and sometimes third parties affected by the court’s decision. The appellant, or party filing the appeal, must demonstrate that the alleged error had a significant impact on the case’s outcome.

Common grounds for appeal include:

• Legal errors: Misapplication or misinterpretation of the law by the trial court.
• Procedural errors: Errors in the way the trial was conducted, such as improper admission or exclusion of evidence.
• Jurisdictional issues: The lower court lacked the authority to hear the case.
• Abuse of discretion: The trial judge made a decision that was arbitrary, unreasonable, or not supported by evidence.
• Insufficient evidence: The verdict was not supported by the evidence presented.

The process typically includes:

• Notice of Appeal: Filing a formal notice of appeal with the lower court and serving it to the opposing party.
• Record on Appeal: Assembling the trial record, including transcripts, evidence, and filings, to be reviewed by the appellate court.
• Briefs: Both parties submit written briefs. The appellant’s brief outlines the errors and arguments for reversing the decision, while the appellee’s brief argues for affirming it.
• Oral Arguments: In some cases, the court may schedule oral arguments, where attorneys present their case and answer judges’ questions.
• Decision: The appellate court issues a written opinion, either affirming, reversing, or remanding the case.

The time frame to file an appeal, known as the “notice of appeal,” is typically 30 days from the date of the lower court’s final judgment or order. This period can be extended in certain circumstances, such as if a party files a post-trial motion (e.g., a motion for a new trial or to alter/amend the judgment).

A brief is a comprehensive written argument submitted to the appellate court. It includes:

• Statement of the Case: Summary of the procedural history and factual background.
• Issues Presented: List of legal questions for the appellate court to consider.
• Arguments: Detailed legal reasoning and citation of relevant authorities (cases, statutes, etc.) supporting the appellant’s position.
• Conclusion: Requested outcome (e.g., reversal of the lower court’s decision).

An oral argument is a hearing where attorneys for both sides present their arguments to a panel of judges and respond to the judges’ questions. Oral arguments provide an opportunity to clarify points made in the briefs and address any concerns or questions the judges might have. They are typically short, ranging from 15 to 30 minutes per side.

The appellate court can:

• Affirm: Agree with the lower court’s decision, allowing it to stand.
• Reverse: Disagree with the lower court’s decision, overturning it.
• Remand: Send the case back to the lower court for further proceedings, often with specific instructions on how to correct errors or reconsider aspects of the case.

No, new evidence is not allowed in an appeal. The appellate court’s review is confined to the trial record, which includes the evidence, transcripts, and filings from the lower court. The purpose is to evaluate whether the trial was conducted fairly and in accordance with the law, not to re-litigate the case.

Appellate judges are tasked with reviewing the record of the lower court, considering the written briefs, and listening to oral arguments. Their role is to ensure the correct application of the law and to determine if any legal errors affected the outcome. They work in panels, usually consisting of three judges, to deliberate and reach a decision.

The duration of an appeal can vary widely. It often takes several months to over a year, depending on factors such as the complexity of the case, the court’s schedule, and whether there are requests for extensions or additional hearings. Each stage of the process, from filing the notice of appeal to the final decision, involves specific timelines and procedural steps.

Yes, parties can seek further review in two primary ways:

• Rehearing: Requesting the same appellate court to reconsider its decision, either by the original panel or en banc (by all the judges of the court).
• U.S. Supreme Court: Filing a petition for a writ of certiorari, asking the Supreme Court to review the case. The Supreme Court grants certiorari in a small percentage of cases, focusing on significant legal questions or conflicts among appellate courts.

An en banc hearing involves a larger group of judges from the appellate court, rather than the typical three-judge panel. It is usually reserved for cases of exceptional importance or to resolve conflicts within the court’s own rulings. En banc hearings can provide a more thorough review and are typically requested through a petition by one of the parties or initiated by the court.

This is a formal request for the U.S. Supreme Court to review a case. The petition outlines the legal reasons why the Supreme Court should consider the case, such as significant constitutional issues, conflicts among appellate courts, or important federal questions. The Supreme Court receives thousands of petitions each year but only grants certiorari in a small number of cases.

While you have the right to represent yourself (pro se), having an attorney is highly recommended due to the complexity of appellate law and procedures. An experienced appellate attorney can craft effective arguments, navigate procedural rules, and increase the likelihood of a successful appeal.

The standard of review determines the level of deference the appellate court gives to the decisions of the lower court. Common standards include:

• De novo: The appellate court reviews the issue without deference to the lower court’s conclusions, typically used for legal questions.
• Abuse of discretion: The appellate court gives deference to the lower court’s decision unless it was arbitrary, unreasonable, or not supported by evidence.
• Clear error: The appellate court will not overturn the lower court’s factual findings unless they are plainly wrong.

If a case is remanded, it is sent back to the lower court with instructions for further proceedings. This could involve a new trial, additional hearings, or specific actions the lower court must take to correct identified errors. The lower court must comply with the appellate court’s directives and reconsider the case based on the guidance provided.

A stay temporarily suspends the enforcement of the lower court’s order pending the appeal. To obtain a stay, you must file a motion with the lower court or the appellate court, demonstrating that you have a strong likelihood of success on appeal and that you will suffer irreparable harm without the stay. The opposing party can respond, and the court will decide whether to grant the stay.

Costs can include:

• Filing fees: Fees for filing the notice of appeal and other court documents.
• Transcript preparation: Costs for preparing and obtaining trial transcripts.
• Attorney fees: Legal fees for hiring an attorney to handle the appeal.
• Printing and copying: Expenses for producing copies of briefs and other documents.
• Miscellaneous expenses: Travel costs for oral arguments, expert consultations, and other related expenses.

Success rates in federal appeals vary depending on the case’s specifics, the grounds for appeal, and the appellate court. Generally, appellate courts affirm the lower court’s decision in a majority of cases, but the likelihood of success increases if there are clear legal errors or strong arguments for reversal. Consulting with an experienced appellate attorney can provide a better understanding of your case’s chances on appeal.