What is an Appeal?
While each appeal is different, there is sufficient similarity to permit some generalizations. THIS IS NOT LEGAL ADVICE. PLEASE CONSULT AN ATTORNEY.
How does the appeal process work?
1. An appeal occurs when a party decides that a decision by a trial court should be reviewed by a higher court. Typically this occurs after trial, but it can occur following summary judgment (in a civil case) and there are instances where an appeal can follow an order instead of a judgment (a so-called interlocutory appeal).
2. An appeal is fundamentally different than trial and an appellate attorney usually has different skills or attributes than a trial attorney. The most important thing in an appeal is the brief. The brief is a long-written argument about the lower court’s ruling.
3. Who are the parties to an appeal? The party who brings the appeal to try to change the lower court’s ruling is the Appellant. The party who is resisting the appeal and wants to preserve the lower court’s ruling is the Appellee.
4. Where does an appeal go? Typically an appeal starts with an intermediate-appellate court. In Texas we have fourteen intermediate-appellate courts. We have two highest courts, one for civil (the Texas Supreme Court) and one for criminal (the Texas Court of Criminal Appeals).
5. In federal court there are eleven circuits (the intermediate-appellate courts) and one Supreme Court.
How soon do you need to file an appeal?
6. Typically, You have Thirty Days to Prefect a Direct Appeal. Recognize that a direct appeal is a time-critical process. There are immediate deadlines to prefect the appeal, file a motion for new trial, request the preparation of the record, etc.
6a. In a federal criminal appeal a person typically has fourteen days to file a notice of appeal.
7. Motion for New Trial: This is often the bridge from the trial attorney to the appellate attorney. It is much better to wait to file a motion for new trial until you have appellate counsel. There are concerns about issue preservation that may need to be addressed. Some trial attorneys will file a form provided by the trial court. This is to be avoided at all costs. Instruct your trial attorney not to do this.
8. Appellate Issues: Learn to recognize the distinction between trial issues and appellate issues. Generally speaking trial issues are issues of fact. Issues such as Milo testified one way at trial but said something different in the police report are trial issues and not something to raise on appeal. Appellate issues are issues such as did the trial court err in failing to issue a requested jury instruction?
9. Habeas Issues: It usually is not a good idea to argue on direct appeal that trial counsel was constitutionally ineffective. This is an issue that should normally wait for a writ of habeas corpus—if necessary. Other issues might not be winning issues on appeal but must be addressed in a direct appeal to preserve them for habeas review. Your appellate attorney should be knowledgeable about writs as well as direct appeals.
10. Appeals Can Take a Long Time: Generally, I tell my clients that an appeal will take around 12 to 18 months to complete. Much—but not all—of this is out of the control of the appellate attorney.
Questions to Ask a Prospective Appeal Attorney
11. When Can the Attorney Go Visit the Defendant? If the defendant is incarcerated, then find out when the attorney can go see the defendant. The sooner the better. It is always preferable to speak with the client before they go to TDCJ.
12. What Percentage of Your Work is Appellate Work: I am convinced that very few people possess the intellectual agility to do both trial and appellate work. The attorney you want working for you has a practice that is devoted to appellate work.
13. Habeas: If you are serious about obtaining post-conviction relief then your appellate attorney needs to be familiar with habeas and probably should do writs. The writ and the direct appeal are sequential but oftentimes writ evidence needs to be preserved during the direct appeal. Also an attorney who does the direct appeal can transition—if necessary—to the writ more quickly, which helps to preserve the federal writ.
14. Account to Follow Appellate Process: Ask the attorney if he or she will help you set up an account so that you get automatic notifications of everything that happens in your case. Mostly these cases are public and so the accounts are easy to get and a convenient way to keep up with the progress of your appeal.
15. Ask to See a Brief: I am not convinced that this helps a client find the right attorney, but it does help the client or his family understand how the appeal will be resolved. This is not like a trial and in the appellate court the brief is the most important thing. Ask to see one.
16. Ask How the Attorney Will Let you Contact Him/Her: Not every appellate attorney will give you his/her cell phone number. Mostly that is not necessary. Instead, a direct e-mail and a direct line to their office should be sufficient.
17. Understand the Difference in Costs and Fees: The attorney’s fee is what the attorney makes on the case. Costs are the expenses to file the appeal and to get the record. In most instances all of the costs are incurred within the first month.
18. The Attorney Does Not Know Your Case Yet: An appellate attorney who is being hired post-conviction does not know your case. He or she was not present during trial and they do not know the facts of the case. They cannot guarantee you a result. That is not just an ethical requirement it is a logical one.
What information do I need to provide my appeal attorney?
19. Trial court cause number, county that trial occurred in, name of trial attorney, and trial court.
What About those On-Line Ratings?
20. AVVO and other on-line resources might be useful to you, but they should be used with extreme caution. Most likely these services have never seen an attorney’s work—much less compared it to that of the attorney’s peers. Instead, such websites often rank the attorney on recommendations from other attorneys. Mostly what happens is that attorneys recommend each other and they recommend their friends. Another way such websites rank attorneys is on the papers that the attorneys have published. Many law firms have in-house publications that allow the attorney to “publish” and that counts toward an improved ranking. Some attorneys work hard at this and others do not, but that is not necessarily a good indicator of what they can do for you.
QUESTIONS: Contact Attorney Niles Illich at (972) 204-5452.
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