Why hire an Appeals Lawyer?
If you are facing an interlocutory appeal (from a interim order of the Trial Court) or an appeal after final judgment in the Trial Court then you need the expertise of an appeals lawyer. Why? Because you now face a new frontier, the appellate court system.
The appellate court system is very different from the Trial Court system. There is a new set of rules, procedures, and decision making criteria. Do not underestimate the difference between trial advocacy and appellate advocacy!
Trial Advocacy verse Appellate Advocacy
The Trial Court evaluates all versions of the facts presented and formulates the ultimate version of the facts of the dispute. It then applies the law to those ultimate facts. Appellate courts are concerned about the law generally, how it applies to your case and the cases like it that follow. An appeal is not about challenging the facts. An appeal is about challenging the law, how the law is applied, and whether the Trial Court abused its discretion in determining the facts or applying the law. On appeal there is no new evidence, no discovery. An appeal is not a second chance at a trial.
The function of the Trial Court is to flush out the factual dispute, determine the ultimate facts of the case, and apply the law to those facts. Often the process requires an extended period of time for discovery, hearings, depositions, and ultimately trial. Trials are full of emotion, and your trial lawyer skills are focused upon human persuasion orally, and by actions. Many trial lawyers have limited time, or desire, to pursue the type of detailed legal research and writing required for appellate work. Unlike the Trial Court, appellate practice is governed by unforgiving, time intensive rules and standards.
The Art of Appellate Advocacy
An appeal is not the second opportunity to re-litigate the trial. Appellate advocacy focuses on legal error and judicial discretion, not witness credibility. There is no discovery or witness examination, only legal argument. The trial attorney's charisma with the judge, jury, and witnesses is no longer relevant.
The most common mistake is to attempt trial advocacy in the appellate court. The practice of law in the appellate court system requires the specific skills and talents of appellate advocacy.
Where the Pen is Mightier than the Sword
On appeal the battle is fought primarily on paper, the appellate brief. Appellate brief writing requires the level of research and writing produced by an appeals lawyer.
The aim of the appeals lawyer is to answer two questions for the Appeals Court:
- Was the Trial Court's conducted in accordance with the law (including procedural and evidentiary rulings that, if erroneous, might alter the factual findings); and,
- Was the law correctly applied to the facts determined.
Trial Court styled writings are inappropriate and insufficient for submission as an appellate brief. Attorney William Driscoll produces legal briefs that are well researched, well documented, well written, and visually pleasing. The old adage is true, you only have one chance at making a good first impression!
The Reality of Appellate Oral Argument
Appellate advocacy is nothing like Trial Court advocacy. Oral argument in the appellate court is severely time limited and tightly controlled by the Court. The appeals lawyer has one opportunity, consisting of mere minutes, to plead your case to the appellate court before decision.
Preparation for oral argument is time consuming and requires the same precise analytical skills as appellate brief writing. The appellate oral advocate must be well versed with the facts, trial record, and law of the case for presentation. The art of appellate oral advocacy requires review of the case through the plethora of questions that the appellate court could raise at oral argument.
The appellate court possesses the discretion to assign a case to oral argument. When scheduled, oral argument is a tool by which the Justices of the appellate court seek answers to their many questions prior to ruling. Oral argument is not an opportunity to orally present the written brief. It is a pressure packed opportunity to persuade the appellate court to find in your client's favor through answers to the Justices' questions.
Working With Trial Counsel
As an appeals lawyer, Attorney William Driscoll provides trial counsel with legal research, writing, and appellate planning services. The client remains with trial counsel in the Trial Court, before and after appeal. Why? Because trial counsel is best equipped to provide Trial Court advocacy for their clients.