When people think of a legal appeal, the typical scenario that comes to mind is when one party loses in court and they appeal in an attempt to reverse the verdict in their favor. In some cases, that happens, but appeals are not a second bite at the apple, as most people think. The process is far different from a trial, with different procedures and objectives, all of which makes the appellate lawyer a unique and highly valuable commodity.
Briefly, civil lawsuits arise out of disputes between people, businesses, or other entities. Before trial, both sides provide the court with a “brief” that outlines their arguments and the evidence they will use at trial. Once the trial begins, each party starts by presenting an outline of their case in an opening statement. Then, the parties present evidence: the plaintiff first, then the defendant, then any rebuttal evidence. Lastly, both parties give their closing arguments. The court instructs the jury on the law(s) to be applied, the jury deliberates, and it reaches a verdict. If one or both parties are dissatisfied with the outcome, they can appeal.
During an appeal, one party asks a higher court to review the trial proceedings for errors. Both parties present their arguments in briefs, which are submitted to the appellate court along with the record of evidence from the trial. Judges, not a jury, review the case for legal error only, not the factual evidence or whether or not someone lied. The appellate court announces its decision in a document called an “opinion” in which the higher court either affirms the verdict if it finds that there was no error in the trial court proceeding or, if there was an error, the higher court can reverse the verdict or order the lower court to conduct a new trial.
At trial, the objective is to convince the jury that one side of the case is right or the other side is wrong. In an appeal, the judges don’t care which side was right or wrong. All they care about is making sure the process was fair. So, the objective in an appeal is either to convince the judges that the trial proceeded properly (if the verdict was in your favor) or that there were procedural errors (if the verdict went against you).
In one article, the author explains why the appeals process is important. First, it offers checks and balances to ensure lower court judges are following the rules. Second, if a judge makes an honest mistake, the higher courts have an opportunity to step in and correct that mistake. Finally, “higher courts exist to interpret laws in ways that impact society as a whole. When a court’s ruling might be one that’s significant to a large segment of the population or it’s a very important issue for even a few people, the higher courts may want to step in and set policy. Then, the lower courts can take the policy and apply it accordingly in future decisions.”
As stated previously, an appeal is not a second trial, but a unique, new phase of litigation where lower court victories are defended or errors are identified. A lawyer who regularly practices in appellate courts will better navigate the appellate rules, select the right issues and arguments to put forward, write a brief that focuses on what matters to the appellate judges, and craft an oral argument that convinces those judges of its merit, thus enhancing their client’s chance of winning the appeal.
At trial, one side or the other wins based on the facts argued. A key appellate skill is accepting those outcomes and working around them. The trial attorney may know the facts and the strategy backward and forward, but that intimate level of engagement creates blind-spots. An appellate attorney takes the case with a fresh look at the record, the same way the appellate judges look at the case. That perspective tends to develop a better appeal based upon the actual record rather than one furthering the trial strategy.
Another important appellate skill is brevity. Appellate lawyers have a very limited opportunity to convince the judges of their theory of the case. Written briefs have length limits and oral arguments have time limits. Every word counts. Experience with appeals will help effectively gauge which arguments will help more than hurt, making sure to eliminate weak arguments so they don’t draw the court’s attention away from the strong ones.
In addition to their focus on the appellate hearings, appellate lawyers can also be valuable to trial counsel. They can develop and define issues and can help prepare motions before, during, and after trial. These efforts contribute substantially to the clients’ success in trial proceedings, but they also generate a record which will benefit their clients on appeal, an important attribute that cannot be overstated.
A trial is a battle. An appeal is a debate. So, during trial, you need a fighter, but you also need a lawyer who is adept at establishing issues during the trial that can be leveraged during the appeal. Then, after the trial, you need a lawyer who understands the appellate process, who can bring a fresh perspective to the overall matter, and who can identify and effectively communicate the best arguments to persuade the judges.
When you recognize the overwhelming benefits of adding the specialized skills of an appellate attorney to your legal team, please contact Robert L. Gegios at (414) 962-5110 or via email at firstname.lastname@example.org.
Kohner, Mann & Kailas, S.C. (KMK) has an extremely successful and highly regarded appellate presence, which supports the firm’s trial group in diverse proceedings in state and federal courts throughout the U.S. The firm’s attorneys have an impressive record handling a variety of matters, including “bet the company” cases, and make themselves available to clients who were represented in trial courts by other firms as well as those represented by KMK’s own skilled trial counsel, both in support of and opposition to trial judgments.
KMK is a value-driven law firm, combining the resources necessary to serve the complex needs of its Fortune 500 clients with the personal care and superior customer service expected by all its clients. Founded in Milwaukee in 1937, KMK has successfully developed a local, national, and international reputation for legal excellence, continually recognized by U.S. News & World Report as one of the nation’s Best Law Firms. For more information, visit www.kmksc.com.