Beginning the Appeal: Three Common Mistakes
Not every case that can be appealed should be appealed. Litigants are entitled to a one fair trial, though not necessarily a perfect one. Before investing more time, effort, and money challenging or defending an appeal - consider the following three common mistakes.
1. Selecting the wrong counsel.
Do not underestimate the importance of choosing the appropriate counsel on appeal. The focus, rules, and procedures on appeal are substantially different from those in the trial court.
The persuasive skill of a trial attorney is charisma. At trial they spend hours, days, or weeks examining witnesses, enter evidence favorable to their client, and seek to exclude evidence unfavorable to their client. Their goal is to win at trial by prevailing on the facts.
The persuasive skills of an appeals attorney are legal analysis, writing, and succinct but effective oral argument. The foundation of an appeal is a persuasive written brief analyzing the law and the evidence as it appeared at trial. At oral argument a panel of judges examine the appellate lawyer in a single short session.
2. Failing to adhere to the rules of appellate procedure.
The rules of appellate procedure are significantly different from the rules of trial procedure. On appeal the rules are more detailed, less forgiving, and prone to more drastic consequence if not followed.
Appellate deadlines are critical! Your Notice of Appeal must be filed within a set period of time. Further deadlines are applicable thereafter. If you miss a deadline then you can be denied your right to appeal, or your appeal can be dismissed.
Appellate procedure requires adherence to strict rules and norms. For example, documents can be rejected and your appeal may be dismissed if you do not conform to the applicable rules of form and substance.
3. Pursuing a losing appeal.
Your Notice of Appeal preserves your right to appeal. However, it does not mean you should or must pursue appeal. You should consider the time, cost, and potential results of pursuing appeal.
An appeals lawyer is capable of reviewing our case for merit on appeal. The first question is whether there is reversible error. Second, is to identify the standard for appellate review for each issued. Finally is the identification of legal precedence that would dictate a certain outcome. These criteria are discussed in detail in How to Evaluate a Case for Appeal.