Where I Begin With An Appeal Client

Talking About An Appeal

Speaker 1 (00:00):
Where I usually begin with clients when talking about an appeal is to talk about two things. First, we talk about how long the appeal is going to take, and second, we talk about how the appeal is different from where they’ve been in the trial court. The first question is easier In almost all state appeals, the appeal is gonna take 18 months, and that’s 18 months from the beginning when the judgment assigned to the time when the opinion issues. At the very end, we will be in charge of 30 to 60, perhaps 90 days of that 18 month period. But other than that, it will be outside of the attorney’s control and will be mostly sitting on the court’s docket. The second thing I think that’s really important to talk about and is perhaps the more complicated topic is how an appeal is different than where your loved one has been in trial.

Difference Between Appeal and Trial

(00:57):
And where I start with this is to really create two categories. And these categories are a little bit general, but I think they’re useful to begin to understand the difference between an appeal and trial. So what I say is that for trial, most of the focus was on facts and an appeal. Most of the fa focus is on law at trial, it really did matter if I’m just making this up, but let’s say John said this in the police report, but he said this on the stand at trial and there conflict, that’s a credibility issue on appeal. That’s no longer the concern on appeal. The issue is did the jury charge get it right? Did the indictment provide due process information on the allegations against you? Did the court rule correctly? When it ruled on an objection, did it get the, did the court get the ruling correct on a motion to suppress?

Finding Legal Errors

(01:57):
Those are the types of things we look to. Now, those necessarily implicate the facts, but the facts are secondary to the law. So the question then becomes, where do we find the legal errors? And we find the legal errors in what we call the record. This is a small record. Records can range. I’ve had them be only a few hundred pages, and largest one ahead was 21,000 pages. But most of them are in the 2000 page range. And it consists of every document that was filed in the court, and then every word that was said during the trial. So what we do is we take the appeal, we start with the clerk’s record, which is every document that was filed, nicely indexed. We go through every single document to understand the procedure of what happened, getting to trial. Then we turn to the reporter’s record and go through the entire transcript of every word that was said during trial.

Reversible Legal Errors

(02:57):
As I do that, I keep a, a yellow pad and I write down the potential legal errors that I identify. I come up with, I don’t know, 10 or 12 or 15 of those. Once those are finished and I’ve been through the entire transcript, I look for the very best legal error. So not every legal error weighs the same. What we’re looking for are reversible errors. Not every legal error is reversible, so we’re looking for a reversible error that will allow us to bring your loved one home. So I find what I think is the very best reversible error, and I start there. I write that issue out in the brief. This is an example of what a brief looks like. This is from a, a complicated corruption trial in Chicago, but it’s just a long written legal argument about what happened.

Brief Guidelines

(03:51):
Now, a brief can be 20 pages. It can be upwards of 60 or 70 pages. We do have a word limit. It’s 15,000 words in state court, and it is 13,000 words in federal court. So that really caps us out around 60 or 70 pages, but that’s usually okay. And it’s usually okay because of the 12 to 15 issues that we find, potential issues that we find, we typically only find two to four to five of them that are sufficiently strong to create a reversible error. I find no benefit to advancing issues that are not going to bring your loved one home. The only question is what are the right issues to win this appeal? We find those, we write those, we put those in the brief. Once we’ve written the brief, we file that brief with the court of appeals.

Brief Filing Timeline

(04:45):
It’s all done electronically. We can give a copy to the family. We give a copy to the client and then the state has an opportunity to respond. They will do the exact same thing we did, except they only look to the errors that we raised. They will write a brief that explains, oh, everything that I argued is wrong. They have the same 30 to 60 days. And once they’re finished, then I have 15 to 30 days to write a reply brief. Once that reply brief is in, all of the briefing is complete. Now the next step is for the case to be submitted. A case can be submitted either on the briefing alone or with briefing in oral argument. My clients, people I talk to other attorneys, put a lot of emphasis on whether or not you get oral argument in a case.

Oral Argument And Brief

(05:38):
And I think that is a mistake. And I think it’s a mistake because I know the fifth court of appeals in Dallas is very generous with oral argument. The judges and justices there simply prefer cases on oral argument. Whereas the first court of appeals down in Houston, simply the judges there simply don’t prefer oral argument. They prefer it to be submitted on the briefs. Now, that has nothing to do with the strength of the brief. That has nothing to do with the strength of the argument has nothing to do with the abilities of the advocate. It’s simply the preferences of the judge or justice who’s going to ultimately resolve this case. So I think the emphasis that is placed on whether or not there’s oral argument is undo. Now, let’s assume for a moment there is oral argument. If there’s oral argument, it’s typically 15 minutes aside.

Presenting The Brief

(06:29):
I get 15 minutes to go up there and argue my case when I go up there to argue. If there’s no new evidence, no new witnesses, no court reporter, no testimony. I’m arguing the merits of the brief that I wrote. The brief is everything in an appeal. When my 15 minutes start, I introduce myself to the court. I can argue whatever I want from my brief. And then the three judge panel, there’s no jury. There’s a three judge panel, three appellate judges who know nothing about this case, start asking me questions about my argument. And it should be in the best scenario, a give and take between me and them about where this appeal is and the merits strengths, weaknesses of my arguments. Sometimes it is an introduction to the judges, to the arguments I’ve presented. In those cases, there’s a whole lot fewer questions, but that’s up to the court in how they want to handle it.

Response To Brief

(07:26):
The other side gets up, they get to give their 15 minutes. I get to do a five minute rebuttal. At the end, the court says this case will be submitted on oral argument. And the briefs, they don’t tell us the resolution. They get up, they leave, and we leave. We go back and we wait, and we wait and we wait. And then eventually we get an email. In Dallas, it comes at six 30 every evening it comes out and we get the opinion. That opinion is the written answer to the court in how this appeal is going to come out. And once we get that opinion, that is the formal end of this part of the appellate process. And of course there are further steps that can go on, but in terms of what an appeal is and how it’s different than trial court it ends with the issuance of that opinion.

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