1. WHAT IS AN APPEAL?
An appeal is not a new trial. In an appeal, you do not have a chance to show a new judge or a new jury different evidence. An appeal is about whether the judge at your trial made mistakes and about whether the mistakes probably helped the other side win. The appeal lawyer is looking for ways to persuade the appellate court that the judge made such serious mistakes that you did not get a fair trial and should get a new trial or some other different outcome in your case. Another way of saying this is to say that the judge’s “errors” were “prejudicial.” Usually the trial lawyer has to let the judge know during the trial that the judge made a mistake in order for that mistake to be considered in the appeal. However, if the mistake is particularly egregious, the appellate court will consider a mistake that was not raised at the trial.
2. WHAT STEPS WILL MY APPEAL FOLLOW?
Your appeal will follow these steps:
A. Record preparation. The “record on appeal” is a booklet that has in it all of the documents that the appellate court needs in order to understand what happened in your case. To prepare the record, your lawyer will get copies of all of the papers filed in the trial court. Your lawyer also will get a transcript of the trial or the hearing in your case.
Once your lawyer has all the papers and transcripts, the next step is for your lawyer to
study them for possible legal errors or mistakes. For example, a common legal mistake in a jury trial involves the erroneous admission or exclusion of evidence. Another example is a mistake in the way the judge instructed the jury. There are many other legal errors that can result in reversal on appeal.
B. Briefing. After the record is filed in the appellate court, your lawyer writes your
brief and files it with the same court. The brief is another booklet, but this one has arguments written by your lawyer telling the appeal court about mistakes in your case, and asking the appeals court for some form of “relief” for you. Depending on the kind of mistake in your case, the “relief” might be a new trial or a new sentencing hearing. In a few cases, your lawyer will ask the appeals court to completely throw out your conviction. This would happen if the appeals court decided that there was not enough evidence at trial to support the judge or jury’s decision. All of this depends on the specific facts of your particular case. After your lawyer files your brief, the other side has a chance to file an Answer Brief. Thereafter, your lawyer will file a Reply Brief.
C. Oral argument. After all the briefs are filed, the Court of Appeals decides whether or not to schedule your case for oral argument. At the oral argument, your lawyer will tell the judges why you should get relief in your case. The lawyer on the other side will argue why you should not get the relief. Each case is decided by a group of three judges called a “panel.” Each side will be given between 15 and 30 minutes for the oral argument.
D. Decision. After the oral argument, or after the appellate court decides that there
will be no oral argument, the appellate court will file a written decision. This is called the
“opinion” in your case. It can take several months after the oral argument or the reply brief for the appellate court to file its opinion.
3. HOW LONG WILL MY APPEAL TAKE?
There are many variables that affect how long an appeal will take. These include (1) how
long it takes for the court reporter to finish the necessary transcripts, (2) the length of the record on appeal, and (3) how long the appellate court takes to reach its decision. Accordingly, it is impossible to say exactly how long an appeal will take. The most important thing is to retain the best attorney that you can afford to represent you on appeal because the direct appeal of your conviction and sentence is your best chance to obtain post-conviction reversal.