Introduction

This essay is intended to provide very basic advice to attorneys who are handling an appeal for the first time. It is not intended to be comprehensive. There is so much that could be taught to lawyers just beginning to take on appellate work that the very task is daunting. This essay will be updated and added to frequently; this initial edition is only a skeleton of what I hope it will evolve into over time.

• Clients

  You have been retained by a private client or appointed by the court to represent an indigent criminal defendant on appeal. The first step is to sit down with that client and discuss the case in detail. What things seemed unfair in the trial court to the client? Often error overlooked by trial counsel is spotted by the non-lawyer whose interests were at stake. It is always a good idea to take clients seriously and listen to their concerns.

  On the other hand, clients sometimes have unreasonable expectations from their appeal. They must be made to understand that the appellate process is a long one and that they must learn to be patient and not call you every week asking for a progress report. They must understand that until the trial transcript has been provided by the court reporter, you will not have any way to determine accurately whether particular issues can be raised on appeal with some prospect of success. They must understand that the great majority of trial court judgments are affirmed, and that it will take you a lot of time, work and skill to convince an appellate court that this particular case is worthy of reversal or modification of the judgment.

  You must explain patiently to the client why certain issues may be viable and why others have no value. Never allow the client to bulldoze you into briefing issues which are absolutely meritless, or allow the client to persuade you to throw a dozen issues at the court when only one or two really strong issues are available. You must exercise your professional judgment at all times. Letting the client dictate issue selection is a mistake which could damage your reputation as an attorney and hurt the client's chances of succeeding on appeal.

  Likewise, if the client insists on the use of stronger language in describing the conduct of the opposing party or parties, advise them that this is not a proper forum for personal attacks. Use your own professional judgment in choosing the language in your Statement of Facts. Also, do not allow the client to pressure you into distorting or mischaracterizing the evidence in the Statement of Facts.

  Do not promise a particular result to the client. It is quite appropriate to give the client a fair appraisal of the prospects of success, but you must make it clear that you can not guarantee how the appellate court will decide the case.

  Always have the client sign a Fee Agreement setting forth exactly what your services cost and what those services encompass. If the appeal is unsuccessful and further appellate review can be sought, make it clear in the Fee Agreement that additional fees will be required for any work performed after a final judgment has entered in the present appeal. The Fee Agreement should state that all reasonable expenses are the responsibility of the client. If the work is being performed for an hourly fee, it should be stated; if funds are deposited for the client in your trust account to bill against as work is done, state the amount of the initial deposit. The Fee Agreement should state, in the event that the representation is being provided for a flat fee, the amount of that fee. You and the client should agree that you are entitled to a reasonable, clearly stated hourly fee for work performed if a flat-fee client discharges you for any reason before the case has concluded.
  

• Issues

  Carefully study the trial transcript and the record on appeal. It is often helpful to first read the transcript without taking notes, as if you were reading a novel, and then go back over it again, taking careful notes. The first reading will sometimes help you to spot potential issues which might not have been as apparent in a page-by-page note-taking approach because of the "not seeing the forest for the trees" problem.. Study the case file of trial counsel, if you were not the client's lawyer at trial. Sometimes a memo or research note will lead you to a valuable issue which was not clear from your reading of the transcript.

  Talk with trial counsel. They often will recall things which may cause you to go back to the transcript and reevaluate the viability of an issue.

  Look at the statutes involved, if any. Ask yourself whether an interpretation of a statute is a fair or correct one, even if it is of long-standing.

  After having done all this, the issues available on appeal should be apparent. Identify those issues which are the most compelling to state and argue in your brief. All potential issues should be thoroughly researched before deciding which issues are most likely to achieve success for the client. Research the decisions of other courts and jurisdictions to see if any favor your client's position and can be argued as persuasive authority. This is easier to do today with the availability of Lexis and Westlaw.

  Narrow your choice of issues and abandon nit-picking or marginal issues which have little likelihood of success. The court will not be as impressed with the case if a strong issue is accompanied by several flimsy issues.
  

• Oral argument

You should thoroughly prepare for oral argument by reviewing the briefs, the research, and important parts of the record. Outline the main points which you wish to address at oral argument and keep a mental picture of the outline when you approach the podium in the courtroom. It is unlikely that you will have a chance to effectively refer to any notes or outline during your argument. You must be prepared well enough to effectively argue on your client's behalf without written aids.

Judges will ask you questions during argument, some of which may seem pointed or even hostile. You must respond clearly and succinctly, and fully answer the judge's inquiry. Questions from the bench are intended to define the boundaries and substance of an issue, and it is the style of some judges to put counsel on the hot seat in the process. Remember that the judge would not ask the question if they were not interested in the issue.

Don't be surprised to find that your fifteen minutes of argument are up without every issue being covered, or discussed in the depth you would have preferred. There is only so much time allotted to each party, and the way you can use the time is defined by the court's questions. The judges have the briefs of both parties and regard oral argument as an opportunity to talk about the case with counsel. It is not a disaster if every aspect of the case didn't get argued at oral argument.