Why Hire an Appellate Lawyer?

Some clients are reluctant to hire a different attorney to handle their appeal. They may believe that the lawyer who tried the case will know it best and is therefore the right person to handle the appeal. Although the trial lawyer may know the case well, he or she may not be the best person to handle the appeal.

First, trial lawyers who only handle an appeal once every few years many not be as well versed in the nuances of appellate procedure as someone who works on appeals every day. There are many issues unique to appeals – issues involving appellate jurisdiction, standard of review, and waiver, for example. Experienced appellate lawyers can spot those issues and know how to address them in the appellate brief. Appellate experience can make the difference between winning and losing on appeal.

Second, appeals are best suited to someone who really enjoys research and writing. Many trial lawyers are great on their feet but may be less comfortable and less skilled in researching and writing an appellate brief.

Third, appeals are very time consuming. A trial lawyer with a lot of cases and a busy trial schedule may not be able to carve out the blocks of time necessary to research and write a compelling appellate brief.

Fourth, an appellate argument is very different from a trial. An attorney who may be a passionate advocate in front of a jury may find it difficult to change hats and be a calm and cerebral appellate advocate.

Finally, an appellate lawyer can bring a fresh perspective to a case. He or she is less vested in what happened at trial and may be better able to evaluate objectively the merits of an appeal.

Why Appellate Law Group?

At Appellate Law Group, we only represent clients in appeals. That focus gives us an advantage when it comes to handling your case.

Appellate practice is a “bespoke” practice. Like a custom suit, an appellate brief needs to fit the facts and the law perfectly.

Virginia McMichael, founder of Appellate Law Group, has over thirty five years of experience drafting persuasive briefs and arguing appeals in complex cases. That kind of experience can make the difference between winning and losing on appeal.

Appellate practice requires excellent research and writing skills and attention to detail. Drafting a top-notch appellate brief is part skill and part art. It takes skill to take a complicated set of facts and issues and craft a compelling argument. It takes art to turn that argument into something that a busy judge will read and understand.

At Appellate Law Group, the lawyer who researches and writes the brief is the same lawyer who argues the appeal. We work closely with trial counsel to understand the trial court record and evaluate the issues for appeal.  Our approach ensures that when the case is argued, it will be argued by someone who thoroughly understands the facts and the law. Clients who work with Appellate Law Group know that their appeal will get the personal attention it deserves.

Overview of the Appellate Process

Clients who have not been involved in litigation often have many questions about the appellate process. While trial lawyers and trials are frequently portrayed in books and television, appellate lawyers and the appellate process are less well understood.

The following is a basic overview of the appellate process in the Pennsylvania state courts. The federal court system has different rules, but the overall process is similar. This summary is just a general explanation, and should not be construed to be legal advice concerning any particular matter.

What courts hear appeals?

Pennsylvania has three courts of appeal: the Superior Court, the Commonwealth Court, and the Supreme Court. The Superior Court and the Commonwealth Court both hear appeals from the Courts of Common Pleas, which are Pennsylvania’s trial courts.

Most civil cases, including family law and personal injury cases, are appealed to the Superior Court.  Cases in which an agency of the Commonwealth of Pennsylvania is a party, or that involve the interpretation of a state statute, are appealed to the Commonwealth Court.

In Pennsylvania civil cases, parties who lose an appeal in the Superior Court or Commonwealth Court cannot appeal as of right to the Supreme Court. Instead, the party files a Petition for Allowance of Appeal (also called a Petition for Allocatur) asking the Pennsylvania Supreme Court to take the case on appeal.

In the federal system, appeals from the Eastern, Middle, and Western Districts of Pennsylvania are to the Third Circuit Court of Appeals. Appeals from the Third Circuit Court of Appeals are to the United States Supreme Court. Civil appeals to the United States Supreme Court are also by permission, which is obtained by filing a Petition for Certiorari or “cert petition.”

What types of orders are appealable?

The Pennsylvania Rules of Appellate Procedure contain very specific rules about what can be appealed.

The general rule is that a final order of a trial court is appealable. A final order is one that resolves all the claims of all the parties in the case, or is an order that is made final by a statute or rule of procedure. The appellate rules also permit appeals from certain types of interlocutory orders, which are court orders that are entered while the case is proceeding.  Some types of interlocutory orders may be appealed as of right, while others can only be appealed by permission of the trial court or the appellate court.

The question of whether a specific order is appealable is a complicated question. There is a whole body of law concerning exactly what types of orders are appealable. The first job of an appellate lawyer is to determine whether the order at issue can be appealed and, if so, whether it can be appealed while the trial court case is proceeding or if it can only be appealed at the end of the case.

When is an appeal filed?

Appellate rules are very specific about when an appeal must be filed. In Pennsylvania, certain types of appeals must be filed within ten days. Most appeals, however, are required to be filed within 30 days from the date of the entry of the order from which the appeal is taken.

The most important thing to know about the timing of a notice of appeal is that the deadline is very strict. The timely filing of a notice of appeal is essential for the appellate court to have jurisdiction.  If a notice of appeal is not filed on time, the appellate court lacks jurisdiction and the appeal will be quashed.  An appeal that is quashed is dead and cannot be reinstated.

The lesson for clients who think they may have an appeal is to discuss the matter with a lawyer immediately. Delaying to “think it over” may result in you losing the ability to appeal.

What will the court consider on appeal?

Appellate courts are often referred to as “error correcting courts.”  That means that the appellate court will only reverse the decision of the trial court if it concludes that the trial court made a mistake. The mistake may be an error of law, such as incorrectly applying a statute or rule, improperly admitting something into evidence, or incorrectly charging the jury.

An error may also be a mistake of fact. A mistake of fact is something involving the evidence, such as whether a witness was telling the truth, or whether the light was red or green when the accident occurred. The appellate courts apply a different standard of review for legal errors versus factual errors. The courts are more likely to reverse a trial court’s error of law and only rarely reverse a trial court’s error of fact.

It is important to understand that the appellate court cannot consider any facts that were not introduced into evidence at trial. An appeal is not a “do over.”  If the trial lawyer did not offer a witness or other evidence that might have been helpful to the case, that mistake cannot be fixed by getting the evidence before the appellate court.

An appeal is not a chance to fix any mistakes made by a party.  Rather, it is an opportunity to correct errors made by the trial court. If the appellate court reverses and remands for a new trial, however, the practical effect of the appeal may indeed be a “do over.”

What happens during an appeal?

Unlike trial court litigation, where there may be depositions, hearings, and frequent meetings with clients, the appellate process takes place largely behind closed doors. From a client’s perspective, it can appear as if nothing is happening, when in fact the appellate attorney is spending long days in the library or on the computer doing legal research, and writing and editing a lengthy written memorandum – the appellate brief.

The appellate process has several stages. After the entry of the trial court order, one party (the appellant) files a notice of appeal or a petition for permission to appeal. The trial court record gets transferred from the trial court to the appellate court, where it is docketed.  The trial court then renders an opinion in support of its order.

The appellate court then sets a briefing schedule. The appellant files a brief of appellant and reproduced record (which contains key parts of the trial court record). The appellee then has 30 days to file a brief of appellee, after which the appellant has 14 days to file a reply brief.  Cases involving a cross-appeal (where both parties appeal the trial court’s decision) will include an additional brief. After the appeal is fully briefed, the appellant may request that the court schedule oral argument.  After oral argument, the judges will deliberate.  Several months later, the court will issue an order resolving the case and an opinion supporting the reasons behind its decision.  

Although every case is different, it can take a year from the filing of a notice of appeal for a court to issue a decision.

What is an appellate brief?

A brief is a written submission to the appellate court.  There are two principal briefs:  the brief of the appellant, which is filed by the party seeking to overturn the trial court’s decision.  The brief of the appellant is also sometimes referred to as the “opening brief.”  The second brief is the brief of the appellee, which is filed by the party seeking to uphold the trial court’s decision.  The appellant may also file a reply brief that responds to the arguments in the brief of the appellee.

The appellate rules set forth strict requirements for the contents of a brief.  The rules include requirements governing the organization and contents of the brief, references to the record, table of contents, table of authorities, and the like.  A brief must include references to authority to support the party’s argument.  Legal statements must be supported by a citation to a statute or case supporting the proposition.  Factual statements must be supported by a citation to the trial court record.

How long is an appellate brief?

Although called a “Brief,” appellate submissions generally run from 20-50 pages, double-spaced, and contain tables of contents, tables of authorities, footnotes, and exhibits. They are rarely very “brief.”  Appellate courts typically have page limits or word limits for briefs, which are set forth in the appellate rules and are strictly applied.

What makes a great appellate brief?

Appellate brief writing involves both art and skill.  There is skill in framing an argument, and art in presenting that argument to the court.  A winning appellate brief must be three things:  it must be compelling, cogent, and clear.

A compelling brief tells a story.  It grabs the reader from the beginning and gives him or her a reason to keep reading.  Judges (and their clerks) are people.  Although they decide cases based on the law, judges are aware that their decisions impact people’s lives.  A winning appellate brief gives the judges a compelling reason to want to find in your favor.

The dictionary defines “cogent” as “appealing forcibly to mind or reason…convincing…pertinent…relevant.”   A cogent brief is one that sets forth a convincing argument, supported by pertinent authority, and relevant facts.  The brief should be broken into headings and subheadings, and every statement should be supported by either a cite to pertinent authority or the trial court record.  Unsupported argument might sound great when spoken in a courtroom, but it will not suffice in an appellate brief.

Finally, the writing needs to be clear.  A good appellate brief writer knows that organization matters.  Short sentences are better than long ones.  Avoid the passive voice.  Appellate judges read lots of briefs every day, many of which are a chore to read.  A short, punchy brief with an active writing style will be a refreshing change.  It will also make it much easier for the judges to understand an argument, and more likely to decide in your favor.

An appellate brief should also contain a conclusion that clearly explains what the appellant or appellee wants the court to do — affirm, reverse, dismiss, and/or remand to the trial court.

If I am a party to the case, what do I need to do while a case is on appeal?

Most of the legal work done in connection with an appeal takes place in a library or on a computer. The attorney writing the brief will research the law and write a legal brief.  While the appeal is being briefed, there is very little for the client to do other than review drafts of the briefs.

What is oral argument?

Oral argument is an opportunity for the appellate lawyer to convince the court that the trial court did (or did not) make a mistake requiring reversal. In Pennsylvania, oral argument in the Superior and Commonwealth courts is before a panel of three or more judges.

An appellate panel will hear many appeals in a day. The cases are put on a list, and each one is argued. When the case is called, counsel for the two parties move to the front of the courtroom and sit at tables facing the judges.  The lawyers take turns arguing, with counsel for the appellant going first.

Arguments are made standing at a podium with a microphone.  Each party is given a limited number of minutes to argue.  Counsel for the appellant may chose to reserve some of the alloted time for rebuttal, which gives appellants’ counsel an opportunity to respond to the appellee’s argments.  During oral argument, the appellate judges may ask counsel questions about the law or the facts of the case.

Clients are often present for oral argument.  Many clients find it worthwhile to see how their case is presented to the appellate court and to hear the judges’ questions.  If you decide to attend the oral argument, you should expect to spend a good part of the day sitting in the courtroom listening to oral arguments in many different cases before yours is called.

How long does an appeal take?

Some appeals are disposed of by an order dismissing or quashing the appeal. When that happens, the appeal is over within a few weeks or months of the filing of the notice of appeal.

Once the appeal is fully briefed and argued, the court still needs time to decide the case and write an opinion. In Pennsylvania, the current rule of thumb is that it takes about a year for an appeal to proceed from the filing of a notice of appeal to the entry of a final order.

What is the likelihood that an appeal will be successful?

The likelihood of success on appeal depends on many factors. Many appeals are dismissed for procedural errors. As discussed above, an appeal will be quashed or dismissed if it isn’t timely filed or if the order is not an appealable order. Because the appellate rules are filled with traps for the unwary, an attorney’s familiarity with the appellate process will reduce the likelihood of a dismissal based on a procedural defect.

The other factor that plays a large role in the success of an appeal is whether the issue on appeal is an issue of law or an issue of fact. Again, as discussed above, the appellate courts are more likely to reverse for a legal error than a factual error.

The likelihood of success on appeal depends on the particulars of your case. An experienced appellate attorney may be able to give you a general assessment of the merits of the appeal but can never predict the outcome with complete certainty.

What happens after the appeal is over?

At the conclusion of an appeal, the appellate court will enter an order and issue an opinion. The order determines who wins and who loses and what happens next. The opinion explains the legal and factual basis for the court’s decision.

If a trial court order or judgment is affirmed, the appellee has won on appeal, and the trial court judgment stands. If the trial court is reversed, the appellant, who lost at trial, is now the winner. When the appellate court finds that the trial court made an evidentiary error, it may reverse and remand, which may result in a completely new trial.

What will an appeal cost?

The cost of an appeal depends on the complexity of the case and the size of the trial court record. If the trial took place over many days or weeks, it will take the appellate attorney a significant amount of time to review the trial transcript and the evidence.

If the case involves many different legal issues, or novel or complicated issues, the process of researching and writing the appellate briefs can be very time consuming. It is not uncommon for an appeal to involve 100 hours or more of attorney time.

At Appellate Law Group, we understand that clients need to know what an appeal will cost. We will gladly prepare an appellate budget for a client or arrange for alternative payment plans.  We also accept major credit cards.

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