The Handling of an Appeal
The Handling of an Appeal
A successful appeal is often a difficult endeavor, but with the correct mindset and proper strategy a case that has been lost in the lower courts, may come to a far different conclusion in the appellate courts. That is why a losing party should not lose all hope. A successful appeal can often put a smile on the party that did not fare so well in the lower courts. But how does one become successful in a civil or criminal appeal. Well, there are no guarantees in this matter, but most successful appeals have the following ingredients. They are:
1) Fresh set of eyes
When one appeals to a higher court, that party does so because of an adverse ruling in a lower court. That is, they did not get what they want. It also means that the attorney who represented you in the lower courts was unable to obtain the result that you desired. Perhaps he was unable to persuade the court with his arguments, perhaps he had miscalculated the courts implementation of the law, or perhaps he or she was just plain unprofessional. Whatever the reason, it is simply foolish to pursue an appeal with the same attorney who lost your case in the lower courts. Why?
In most instances, the attorney who lost your case in the lower courts will simply rehash his arguments to the higher court. Perhaps the higher court will take a different approach than the lower courts and render a different ruling, but in most cases that is not the case. Some estimates claim that only 10% of all appeals are ultimately successful. The reason why is many attorneys simply rehash a losing argument. That is no way to win an appeal. The argument that failed you in the lower courts will often meet a similar fate in the higher courts. Your case, your cause, may have victory within its reach, but clinging to a losing argument is no way to win.
That is why any party who seeks to appeal a lower court ruling should look to hire a new attorney to handle his or her appeal. A fresh new set of eyes will be able to identify compelling arguments in your case, and also, and most importantly, objectively analyze the failings of your case in the lower courts. It is wise that a new attorney be brought in to handle the appeal.
2) Emotionally Elevate your Argument
The law is a wonderful profession, but it is often an arduous profession. Many appellate judges, and their clerks, are simply swamped with a multitude of briefs and their corresponding caselaw. Your appellate issue, may be on firm legal footing, but if your argument has no emotional thrust. Your case is going nowhere. Your appellate brief must powerfully explain in emotional detail the strengths of your case. Remember, before you can even "appeal" to the higher courts, you must get their attention. A newsboy before he even sells you your paper, does so, but not after he has gotten your attention with a wail or a scream. The same thing can be said for your case. Judges are swamped with a tremendous workload. For your brief to standout, it must appeal to that judge's emotion as much as his intellect. Once you emotionally invest him in your case, then he may be finally ready to intellectually analyze the strengths of your appeal. Otherwise, your brief will simply become another forgetful piece of paper to him, and if that happens, you have no chance at a successful appeal.
3) Be respectful, but don't be shy
So many attorneys nowadays accord an enormous amount of deference to judges. And judges should be respected, it is a prestigious, powerful position that warrants a certain air of deference. But please don't be afraid to pinpoint and explain why the lower courts erred and the basis for that error. Too many attorneys play it too close to the vest. They don't want offend the lower courts, but at the same time wish to seek that the lower courts ruling be reversed. A client's case should not be left for dead simply to avoid offending the lower court. There is nothing more offensive than a bad ruling, and the higher courts are more than willing to correct that. Therefore, don't be bashful to explain your appeal in a forceful, aggressive fashion. There is no other way.
4) Show the power of your Reason and the folly of the lower court
The legal justice system, for all of its complexities, serves two purposes. To do what is right, and to do what is reasonable. Many lower courts render decisions that are simply unreasonable. Do not simply pinpoint how the lower courts ruled in an unreasonable manner, but also show the error of their ways. For example, the infamous Plessy v. Ferguson case set the irrational rule of law that black peopleand white people could live in a "separate but equal society" That ruling, which was thankfully overturned over half a century later, was patently an unconstitutional ruling by the Supreme Court. However, if one were to argue this case today most lawyers instinctively would argue this case on its legal merits. Rather than exposing the real-life absurdity of the law. If a ruling is absurd or ridiculous, explain to the court, if implemented, how it could have negative effects upon society and why justice requires that such a ruling be overturned.
5) The Law is in Constant Flux and use this to your benefit
As mentioned before, the Plessy v. Ferguson case, as irrational and unconstitutional as it was, was the law of this land for approximately 55 years. The law was unreasonable, its effects deplorable, its ruling against common decency, but for over half a century I assure you many lawyers were probably convinced this law was set in stone with absolutely no chance for a reversal. However, they were wrong. The Supreme Court, in Brown v. Board of Education, overturned the Plessy decision and rejected its absurd holding. That is why many attorneys and their clients cannot be afraid to argue that a new holding is merited or that the current rule of law is unreasonable or outdated. Appellate courts often seek to maintain precedent, but they will not uphold a ruling or law that is no longer reasonable. Matter of fact, most appellate courts are actively seeking to change abhorrent rulings and laws that are not a reflection of our current society. If your case involves such a ruling or law, duly note precedent, but do not let it effect the thrust of your case. Your appellate argument may just be the one that establishes a new precedent.
6) Focus your argument
Many people when they appeal a case, lawyers included, are simply appealing to "win" in their particular legal ballgame. There is nothing wrong with trying to win in the law. The adversarial system has its winners and losers. But the higher courts don't necessarily care who wins and who loses. However, in this quest to attain victory, many lawyers will fatten up their legal arguments by arguing a litany of legal issues. This is the wrong approach. Courts view this as a sign of weakness, not strength, in your case. Focus your efforts on the basic thrust of your appeal. Flesh out the issue or issues, and craft your argument with professionalism and passion. This will merit the courts attention, and will offer you the best shot at winning an appeal.
7) Play to Win
This sounds like an old sports cliche, and it is, but it is sage advice for any person seeking to win an appeal. Most appeals are often argued by the same attorney who failed to win in the lower courts. This attorney generally falls into one of two categories. The "vendetta" attorney who is out to prove that the lower court did him wrong, and the "going through the motions" attorney who is simply pursuing an appeal to give you false hope while at the same time fattening up his legal fees. If your attorney fits into either mold, that attorney should be promptly terminated. Why? Because that attorney, if he falls in either category, is simply not playing to win. Playing to win means two basic things. First, your attorney passionately believes in your case. If you feel your attorney does not genuinely believe in your case, then how can he convince a court if he can't convince himself as to the merits of your case. Second, he has a gameplan for victory. If an attorney is simply rehashing old arguments to the higher court, he is not playing to win, but simply hoping to win. A gameplan consists of an attorney understanding the basis for an appeal, but also objectively understanding how he must passionately make his argument to the higher court. That is why, on an appeal, it is often best to seek new counsel. By the time the appeal rolls around, the attorney who represented you in the lower court, has been usually zapped of his passion and has lost the ability to objectively analyze the merits of your case. Make sure the attorney who is handling the appeal sincerely believes in your case, and also has the ability to make an objective analysis on how to pursue the appeal. That is how one plays to win, and it is the only mindset that can lead to success in an appeal.
This article was written by John V. Siskopoulos, Esq. Mr. Siskopoulos is an attorney who concentrates in the handling of civil and criminal appeals. If you would like to contact Mr. Siskopoulos his email address is jvs@maappeals.com
Copyright by John V. Siskopoulos, P.C. You may copy this article as long as you include this copyright notice, and include the above email address in the byline.
