The Federal Appeal Process – What you need to know.

Procedural TV shows like Law and Order and films like A Few Good Men make the most of the age-old “courtroom drama” form of entertainment. Most of us, when thinking about courtroom litigation, immediately jump to images of lawyers arguing to a jury, or witnesses in the witness box having a “Perry Mason moment.” However, the reality is much less exciting, and the reason for that is very simple. Federal appeals are not dramatic.

Where trials are all about emotion and storytelling, appeals are about the law and a legal conversation between the lawyers and the appellate panel. Yet, an appeal can have the same, or greater, impact on the ultimate outcome of your case. Given the significance of an appeal, here are some important tips you need to know about working with your federal appeals lawyer.

1.     You Cannot Retry Your Case On Appeal

It is a common misconception that you will be able to re-argue the issues that the trial judge decided against you. Unfortunately, that is not the purpose of an appeal.

An appeal is a legal argument made to a panel of appellate judges. There are no witnesses, no jury, and no opening or closing arguments. Rather, your attorney identifies where there was a trial error and argues that those errors justify a new trial.

For example, if the trial court allowed the government to admit a piece of evidence before the jury, such as a coerced confession, and overruled your attorney’s objection to its admission, then that would be an error on which your attorney can appeal. The argument before the appeals court on that issue would be a legal argument as to why the confession should have been excluded.

But most importantly, appeals defer to the facts presented in the original case. As you work with your federal appeals lawyer, it is important to remember that the facts presented at trial are virtually “set in stone”. It is only in extremely rare cases that new facts are presented during the appeal case.

2.      Federal Criminal Appeal Can Take A Long Time

When contemplating filing an appeal, you should go in with the knowledge that the process will take a long time. You should expect that the process could take a year or more. There is no question that the slow pace of the appellate process can be frustrating. Unfortunately, that is the nature of the process.

Why is the process so slow? Well, any given federal appeals court typically has hundreds of appeals to hear and decide at any given time. As noted above, an appeal involves technical legal arguments that must be researched and individually considered. It will take time for judges to make individualized decisions based on each case. Of course, appeals judges have clerks and staff, and the administrative process has been streamlined somewhat through electronic filing of papers. Yet, no automation can replace the careful decision-making necessary for each appellate argument.

As you work on your appeal with your federal appeals lawyer, remember that the process will take a long time.

3.     Not Every Federal Appeal Has An Oral Argument, But You Want To Ask For One

Most federal appeals are determined without ever requiring an oral argument. That means that the parties in your case will file legal briefs (written arguments) in connection with the appeal. The federal appeals court then decides the various issues raised without hearing from any of the lawyers in person. When a case is decided in this way, it is referred to being “on the briefs”.  Nearly 75% of all appeals are heard and decided solely in this fashion.

However, you can ask your federal appeal lawyer to request an oral argument when you take your appeal to court. Lawyers from each side will give a short presentation before the panel of appellate judges and answer any specific questions they might have. By presenting the argument in this way, it can lend more persuasive force to the case. Not always, but oral argument sometimes has an impact on the appeals court’s ultimate decision.

4.     Getting An Acquittal On a Federal Appeal Rarely Happens 

You may feel that once another court hears the facts of your case, that court will find you not guilty. Typically, however, appeals courts do not work that way. An appeals court is there to review any trial errors that the litigant may have occurred and address those errors.

If the appeals court does, in fact, agree that the trial court made some error, then it must decide how to rectify the error. In some cases, the appeals court might find that the error was harmless and thus, did not impact the case. The court would then decide that no remedy is required.

In other cases, however, the appeals court might find that the error was so substantial that a re-trial is required. Appeals courts like to have trial courts fix any errors they committed. In those cases, they will remand the case back to trial with instructions on avoiding those issues in the future.

In working with your federal appeals lawyer, know that getting an acquittal on appeal is highly unlikely. Be sure, however, to discuss the possible remedies that an appeals court may provide.

5.     Losing An Appeal Is Not The End Of The Road

Finally, remember that there are many ways in which you can get relief after a trial. First, you will seek a “direct appeal,” which means that you can challenge the decisions made by the trial court. If the initial appellate court does not agree with your legal arguments, then you may appeal to a higher court, all the way up to the U.S. Supreme Court.

Once you have exhausted all of your direct appeals, the next step is to seek post-conviction relief. Most post-conviction relief petitions involve an argument about how your trial counsel was ineffective. Accordingly, your first appeal is not the end of the road. Be sure to discuss with your federal appeals lawyer the various appeal options available, and the likelihood of success with each approach.

In sum, our legal system has a number of checks and balances. The appeals process is the best check on arbitrary or unreasonable decisions made by the trial court. Should you decide to appeal your trial verdict, be sure to work closely with your federal appeals lawyer to ensure that he or she can put on the best appeal possible in your case. Best of luck.