Frequently Asked Questions
Frequently asked questions I get as an appeals attorney
What makes someone an appellate lawyer?
An appellate attorney practices in any of the various intermediate-appellate courts or the apex courts. Appellate attorneys usually practice in both state and federal court. An appellate attorney may assist during trial but his or her primary function will be to represent a client before the intermediate-appellate court or the court of last resort (Texas Court of Criminal Appeals, Texas Supreme Court, or Untied States Supreme Court).
How does someone learn to become an appellate attorney?
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.
What does an appeals attorney do?
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.
How long does a criminal appeal typically take?
Generally, an appeal takes eighteen months from the time that the sentence is imposed until the opinion issues.
Will my loved one be released on bond during the appeal?
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.
How is an appeal different than a trial?
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.
What are my chances on appeal?
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.
What happens after 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).
Have Appeals Questions?
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“As a fellow attorney, I cannot tell you what a great resource Niles is. His ability to help me find answers to questions that help me in my criminal practice is so valuable. The day before trial, a few weeks ago, I had a really tricky question. I called Niles and within just a small amount of time, he had emailed me the answer to my question, and the law to back it up.
He is a truly brilliant researcher and writer. He is who I will use for all of my client’s appeals. If you need help, call him.”
“I had an appeal with many moving parts, as a business owner going through the Texas civil court system. Niles was successful in attacking the lower courts decision, on appeal, where my case was successfully remanded back to the civil courts.
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