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- Appellate Law
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|Why Retain an Appellate Attorney|
The final judgment at the end of a trial or even a plea of guilty in a criminal case is not the final determination of your case. In fact, in New York you are allowed to appeal almost any judgment, decision or order of a lower court as of right. If you believe that there was an error in the proceedings that were adverse to you (or if you seek to prevent a favorable decision from being reversed), you must seek redress promptly.
Many litigants may ask why they would change attorneys after the initial decision or order. After all, you have an attorney that represented you in the case below and, may very well have done an admirable job. However, the skills of a great trial attorney greatly differ from those of the appellate attorney. A great trial attorney has the ability to connect with jurors, theatrically present your case and offer an impassioned closing argument. While these skills are invaluable to the trial attorney, they are nearly useless on appeal. This is so because, an appeal is substantially different from a trial or hearing.
Appeals are heard by a panel of experienced judges that are schooled in the law and, not lay jurors. To that end, appeals are largely decided on the written word. That is not to say that oral argument does not matter but, it too differs from oral advocacy at trial. In order to be successful on appeal, the appellate attorney must possess the ability to perform exhaustive research, write eloquently and succinctly, spot appellate issues and bring them to life and be able to engage in oral argument on issues of law before a panel of judges. With that said, the following shall highlight the skill set required for an appeal.
The following illustration highlights the skill set an experienced appellate attorney can provide. If you feel as though you have a meritorious appeal, please call (518) 283-3288 to speak with an experienced appellate attorney.
"Inside of a hundred years the written brief has largely taken the place that was once reserved for oral argument. For that reason, an ability to write clearly has become the most important prerequisite for an American appellate lawyer [and] rarely is good oral advocacy sufficient to overcome the impression made by a poorly written brief," William H. Rehnquist, From Webster to Word-Processng: The Ascendance of the Appellate Brief, 1 J. App. Prac & Process 1 at 3, 4 (1999).
"It is the brief that does the final job, if for no other reason than that the opinions are often written several weeks and sometimes months after the argument. The arguments, great as they may have been, are forgotten. In the seclusion of his chambers, the judge has only his briefs and his law books. At that time your brief is your only spokesman." Thurgood Marshall, The Federal Appeal, in Counsel on Appeal 139, 146 (Arthur A. Charpentier ed. 1968).
As the quotes from the above Supreme Court Justices point out, the need for a concise, eloquent and convincing brief is the lynchpin to appellate advocacy. It is also imperative that these written skills be constantly honed lest they weaken leaving your appellate argument unconvincing. Matthew Hug, as an appellate attorney is a highly experienced writer and has time and again submitted well-written appellate briefs that have convinced the appellate courts across the State of New York, including the New York State Court of Appeals.
"Oral argument seldom brings you 180 degrees around, but if your tilt is, say 51-49%, it can make a big difference." Patricia M. Wald, 19 Tips From 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 17 (1999).
As stated, while oral argument is important, it is not sufficient, in and of itself to secure victory on appeal. That is not to say that oral advocacy is irrelevant. With that said, however, oral advocacy at the trial level differ greatly from those necessary at the appellate level. Effective oral advocacy does not involve an impassioned speech as it does before a jury. Rather, appellate advocacy requires the practitioner to address the questions and concerns of a panel of judges with a grasp on the legal issues. To that end, great oral argument requires the attorney to listen as well as speak. Remember, the goal is not to dazzle 12 jurors but, to convince an appellate panel to follow your interpretation of the law. Over the course of dozens of appeals, Mr. Hug has successfully argued cases before the New York State Court of Appeals as well as the Appellate Division.
"We . . . observe that trial attorneys who prosecute their own appeals, such as appellant, may have 'tunnel vision.' Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of distinterested members of the bar, schooled in appellate practice." (Estate of Gilkison, 65 Cal. App. 4th 1443, 1449-1450 ).
This attachment can cloud judgment vis a vis important appellate issues. An appellate attorney, on the other hand, will be detached from the case, relying solely upon the record. In fact, this is the very same view the appellate court will possess. Bringing this record to life and spotting the truly meritorious appellate issues is the job of an appellate attorney.