Based on my practice in the appeal courts for 33 years, I’ve come up with some advice for avoiding the pitfalls and traps that befall appellate lawyers. If you need an attorney for a criminal appeal or other post-conviction relief, such as under 28 U.S.C. Section 2255, or Florida Rule of Criminal Procedure 3.850, you already have stepped into the quicksand of the legal system. Maybe you’re the victim of trial court error or ineffective assistance of counsel. Hopefully, this article will help you winnow through the pool of appellate lawyers in your time of need.
1. Experience Counts with Appellate Lawyers.
It takes years to master the craft of sifting through transcripts for legal errors, researching the issues, writing persuasive briefs, and arguing the case effectively to multi-judge panels. There is no magic number of appeals or post-conviction proceedings that will adequately train appellate lawyers. But someone who has done 10 or 20 is just a beginner. If I was forced to choose a magic number of criminal appeals, I would say 100 as the bare minimum for a lawyer to call himself or herself “experienced.”
2. Appellate Lawyers Should Be Respected by Peers.
The lawyer should be rated AV by Martindale Hubbell, a combination that reflects the highest legal ability and highest ethical rating awarded. Additionally, if the appellate lawyer had been selected by peers to elite groups, that, too, is a bonus. For example, “Superlawyers” is a recognized rating service that chooses only the top five percent of practicing lawyers.
Appellate lawyers must be both excellent writers and polished orators. Here, Marcia Silvers argues a homicide case before the Florida Supreme Court.
3. Choose a Lawyer Who Will Actually Handle the Appeal.
Your appellate lawyer should handle every aspect of your case from the first appointment in which you discuss the case, through the oral argument in front of a multi-judge panel to any post-decision motions. Also, beware of Internet sites that appear to be “national law firms” but actually refer cases to appellate lawyers not part of the firms. They are basically just referral services masquerading as actual firms.
4. Evaluate Your Chances on Appeal.
Ask your potential appeals lawyer to evaluate your case. Some are stronger than others. No lawyer should ever “guarantee” victory. But experienced appellate lawyers should be able to tell your chances based on the record and the court where the case is pending.
5. Choose an Appellate Lawyer with Enthusiasm for Your Case.
This is more subtle than the other tips. What do I mean? Appellate lawyers shouldn’t just go through the motions…no pun intended. You don’t want your advocate thinking about his/her golf game instead of your case. You want an assertive warrior, someone who will enthusiastically carry your spear into battle. Criminal litigation is not a game; it is war, though carried out under a set of rules. The Florida Rules of Professional Conduct – commonly called the Ethical Rules – have even codified this notion: “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” Zealously! That’s the key word.
6. Appellate Lawyers Should Be Polished Orators.
Arguing a case to a multi-judge panel is very different than presenting a case to a jury in the lower court. No witnesses are examined or cross-examined in an appeals court. Instead, appellate lawyers orally argue the major legal points and, most importantly, respond to the judges’ questions. Some judges throw fast balls; others throw curves. Your appellate lawyer must be able to hit either pitch out of the ballpark. To do this, the lawyer must know ALL the applicable case law and how it applies to the facts of your case. Appellate lawyers must also be sharp-witted and eloquent.
7. Appellate Lawyers Must Be Excellent Writers.
Your appellate lawyer will write briefs on your behalf in which the facts of the case and the legal arguments are set forth. Briefs are arguments read by the judges and their law clerks before a decision is made as to whether a request for an oral argument will be granted. For that reason, among others, it is very important that your appellate lawyer be able to write clearly and persuasively.
8. You Don’t Necessarily Need an Appellate Lawyer Located in Your State.
Experienced appellate lawyers often practice in many jurisdictions. In fact, this may be a sign that the lawyer is highly regarded. So, ask your potential lawyer if he or she has ever handled cases in other states.
For appellate lawyers, the United States Supreme Court is the World Series and Super Bowl rolled into one.
9. Don’t Necessarily Choose the Lowest Priced Lawyer.
The old cliché, “You get what you pay for,” is often true in the practice of law. You don’t want an appellate lawyer who will merely “skim” the trial transcript or have a first year law student summarize it. You don’t want an appeals lawyer who takes on too many cases because he or she has set fees too low. Many factors can make appellate work complicated and time-consuming. A lengthy transcript, multiple defendants, and complex legal issues are all such factors. Experienced appellate lawyers are both more knowledgeable and more efficient at reviewing transcripts, isolating and researching legal issues, writing briefs, and orally arguing the case.
10. Were You the Victim of Ineffective Assistance of Counsel?
The Sixth Amendment of the U.S. Constitution guarantees the effective assistance of counsel. This applies to both the state and federal courts. If your trial lawyer’s performance was so deficient that it undermined confidence in the verdict, you may be able to overturn your conviction even after your conviction has been affirmed on appeal. I have handled many “ineffective assistance of counsel” cases over the years and will expand on the subject in a subsequent blog. For now, you can read a brief synopsis of the issue in Wikipedia.
Marcia Silvers…for the Defense
Author’s Note: I received my law degree, with honors, from the University of Miami Law School in 1981. I am admitted to practice in the courts of Florida, the United States Supreme Court, eight federal courts of appeal, and several federal district courts. I have won a wide variety of cases – many high profile – from homicide to white collar crime, Internet pornography to Medicaid fraud, drug offenses to tax evasion and money laundering. There is virtually no criminal offense I have not encountered in my three decades of practice, mainly in appellate and post-conviction litigation. Visit my home page for more details.
