Five Things You Need to Know If You Have an Appeal
In honor of submitting my paperwork to join the U.S. Supreme Court Bar, I am putting together a blog on everything you wanted to know about appeals, but were too scared to ask. Here they are:
1. Hire an Appellate Lawyer
Trials and appeals are very different things with very different skill-sets. Trials lawyers usually spend their time on their feet speaking in court. They have an answer before the question is asked.
Appeals are different. The vast majority of the work is research and writing. Oral argument usually makes up less than 5% of the appeal and in a lot of jurisdictions, oral arguments are simply waived in more than half of cases.
2. The Trial Lawyer Still Matters
It is important to have a fresh set of eyes on an appeal, so an appellate lawyer is critical. But the initial trial lawyer should know the case inside and out. The best teams usually consist of the trial and appellate lawyers working in conjunction.
3. An Appeal Can Change the Law
Appellate courts have a big job. Their decisions have the ability to change the law—sometimes for the entire nation. These courts tend to be very careful in how they use this power.
Smart appellate attorneys tend to consider the practical implications of the decisions that they are asking courts to make. The courts are certainly aware that their decisions may have broad impacts.
4. Rules Do Actually Matter
When appealing a case, you are usually saying, “this judge made a mistake with the law, fix it.” The judge is certainly a graduate of a law school, probably a good one. They have probably worked in law as both a lawyer and a judge for decades. If they did in fact get a rule wrong, it was probably not on purpose.
Appellate courts tend to be very kind to other judges. But they will reverse them when they apply rules incorrectly. Being fair bodies, however, they will not like seeing you make glaring rule errors in your filings. No one wants to let a rule breaker call out others’ mistakes.
5. D.C. is the Sun in the Appellate Universe
This may just be an advertisement for Washington, DC. I am the Appellate Vice-Chair of the DC Bar’s Litigation Community after all. Seriously though, DC is far and away home to most of the country’s appellate lawyers and appellate courts. The Supreme Court, two DC Courts of Appeals (Federal and City), and the Court of Appeals for the Federal Circuit just begin the list of appellate courts in the city.
The storied K Street is filled with the white-shoe law firms that house the nation’s best appellate lawyers. The law firm where I got my start at moved to L Street the year I began practicing—though they remain one of the best law firms in the world. And the U.S. Department of Justice, with its highly skilled appellate division, is headquartered in D.C. also. So the District of Columbia is the city for appellate law.
These are the basic truths of appeals from an appellate attorney’s perspective.