The Appellate Process
Nuances Of Appellate Practice
An appeal is a complex process even for an attorney.
The rules of procedure and policy requirements in the appellate courts are completely different than those in the trial courts. Most attorneys are not familiar with the procedural nuances of appellate practice and there are important time limitations that must be complied with or a party may lose their right to appeal their case. Therefore, it is important to consult with and hire an attorney who is experienced in the practice of appellate law, brief writing and oral argument.
The Notice Of Appeal
Every appeal, whether in State or Federal court starts with the filing of the Notice of Appeal. This is actually the simplest part of the appeal, yet the most essential. The Notice of Appeal is a one-page document that puts both the trial court and the appellate court on notice that one of the parties intends to appeal the lower court’s decision or verdict. This one page notice also triggers the appellate court’s jurisdiction in that the appellate court, generally, will take no action on a case unless the Notice of Appeal has been filed first. There are important time limitations for the filing of this document and an experienced appellate attorney must be consulted right away so that important appellate rights can be protected.
Researching And Writing
The art of commuting judicial errata of the lower court into cogent legal arguments for the appellate court is the marrow of the appellate attorney’s work.
Integral to every appeal is researching and discovering legal issues that have occurred at the trial level. The trial court may have committed errors with regard to various areas of the law such as procedural, substantive, constitutional and evidentiary. Finding these errors in the record of transcripts from the trial level is indispensable, and time examining the lower court transcript is time well spent by the appellate attorney.
Scrutinizing and probing the trial court transcripts, researching and investigating the law – these are the antecedents of writing an effective and winning appellate brief.
The Appellate Brief
The heart of every appeal is the appellate brief. This is usually a lengthy document that pinpoints the errors of the lower court.
The appellate brief has a multitude of functions: it must present the client’s position and persuade the court; it must elucidate material facts and expound legal argument; it must remonstrate the lower court’s holdings and refer the appellate court to the applicable law; above all, it must persuade. Considerable time and effort must be expended cogitating legal argument and crafting the most persuasive appellate brief possible.
Oral argument is unique to the appellate process. It entails arguing the points contained in the appellate brief to a panel of judges. The process is highly interactive, with judges asking the attorney questions and probing the arguments previously made in the brief. Oral argument can last anywhere from 5 minutes to 30 minutes depending on the appellate court and the judges on the panel. There are many views on the efficacy of oral argument: some Judges say that their minds are made up prior to oral argument and it is only the rare case where it will make a difference, others assert that oral argument is essential to the process. Whatever the Judge’s opinion, oral argument, for the Appellate attorney, is the last opportunity to persuade the judges prior to their decision.