An appeal is a vastly different animal than a trial. Although an appellate attorney must be a great trial attorney, a great trial attorney doesn’t necessarily translate into even a competent appellate attorney. The reason is simple, the skills required to be an outstanding appeals lawyer are different than being a great trial lawyer. Trial lawyers need to focus on gathering evidence and then formulate a plan that presents the evidence in the most compelling way to the jury.
An appeals attorney’s focus is on an analysis of the law. This analysis considers the current state of the law and where the law is headed in the future. The legal analysis then considers the facts of the case as they were developed at trial. An appeals lawyer is bound by the facts that are found in the appellate record and cannot present new evidence on appeal. Once the legal and factual analysis is completed, an appeals attorney then must scrutinize every document, every objection that was made or should have been made, and every statement or ruling made at trial to identify a prejudicial legal error.
An appeals lawyer must be a master of legal research and written advocacy because the appeals fight is primarily conducted with written briefs that can be tens of thousands of words long. Although a select few appellate cases are selected for oral argument, forcing an appeals lawyer to be a capable oral advocate. An oral argument is a small component of the appeals process especially considering that the vast majority of appeals cases are never called for oral argument.
Any Attorney in Illinois Can File an Appeal
Illinois’s Rules of Professional Responsibility forbid practicing lawyers to refer to themselves as specialists in an area of law. Unlike medical doctors, Illinois lawyers do not receive board certification in a particular area of law. Instead, Illinois lawyers are free to practice any area of law even if they have zero experience in that practice area. Unfortunately, this situation has resulted in many Illinois courts to complain about the substandard appellate briefs that are submitted for review.
What an Experienced Appeals Lawyer Can Do
Immediately upon retaining an experienced appeals lawyer you will see the difference. An appeals attorney offers you a fresh perspective on your case. Your trial attorney has likely spent a significant period of time staring at your case and with human nature as it is, your attorney maybe suffering from tunnel vision. More importantly, an experienced appeals attorney can create an appellate brief that focus on the issues that matter to an appellate court justice.
For example, at trial a major focus is the definition of some key legal issue such as the elements of a criminal statute, the definition of negligence, or the elements of a breach of contract. At the appeals stage, these definitions do not matter because the audience hearing the argument is vastly different. At trial, a jury comprised of non-lawyers who are unfamiliar with legal terminology, hear the case; whereas, in an appeal, the audience is 3 or more justices that know the relevant legal definitions. Instead, a major focus on appeal must be the relevant standard of review.
Knowing the Right Standard of Review is Key to a Winning Appeal
The appellate rules require that every issue presented for review contain a statement of the appropriate standard of review for the appellate issue. Identifying the appropriate standard of review is a unique skill set that an experienced appeals lawyer is capable of handling properly. Unfortunately, many appellate briefs identify the wrong standard of review or fail to even identify a standard of review.
Failing to identify the correct standard of review can be fatal to your chances of success on appeal. The appellate court utilizes various different standards of reviews in deciding an appellate case. Some give zero deference to the rulings made by the trial court and some give so much deference that it is virtually impossible to get a ruling overturned on appeal.
Identifying the correct standard of review is critical to effective appellate advocacy as is being able to cite to the correct legal authority. Supreme Court Rules require that every argument made on appeal be supported by citations to legal authority that stand for the proposition being argued. Many lawyers, at both the trial and appellate level, do not support their position or even worse cite cases that support the position of the opposing side. On more than one occasion we have argued that the case cited by our opponent in support of his position is in fact a case that proves the point that we are making. Additionally, we have seen cases cited that carry no precedential value either because they are too old, the logic employed has been questioned by other courts, or cases that have been outright overturned by a higher court.
With the advent of the Internet and subscription based services like LexisNexis and Westlaw, an appeals attorney must be versed with all the case law in the legal universe even if that case has just been issued. In today’s day and age, being unfamiliar with a relevant case is something that an appeals attorney cannot do. The added pressure on an appeals attorney to be completely up-to-date on all the newest cases because of the Internet has dramatically reduced research costs for the client. In today’s world, a law library filled with outdated books is thing of the past. Now all the major legal works and the vast majority of the non-major legal publications are all available on a computer.
An appeals attorney must present a unique skill set to effectively handle an appeal. As the late Chief Justice of the United States William Rehnquist once famously stated, “an ability to write clearly has become the most important requisite for the American appellate lawyer.” Brief writing is an art of its own. It requires the ability to identify legal issues from the record on appeal, defining the issues in an appellate argument, legal research, and finally, writing an argument supporting your position that is clear, concise, and compelling. The appellate brief must be readable and not dry and boring. After all appellate court justices are human and a dull and unreadable brief will accomplish its goal of not being read by the justices. Every word that is contained in an appellate brief must have a purpose and superfluous words only act to distract from the arguments that you want the justices to consider. As Mark Twain once said, “the difference between the right word and the almost right word is the difference between lightning and a lightning bug.”
Whether you are bring an appeal or defending an appeal, you deserve nothing less than an appeals attorney that has the passion and experience to handle your appeal correctly. Jaleel Law P.C. is led by Omer Jaleel, an award winning lawyer, who has spent his career perfecting his appellate advocacy skills. As a former appellate prosecutor, Mr. Jaleel gained the foundation that he uses to fight for his appellate clients. We know what it takes to win an appeal and we will do whatever it takes to win yours.
Contact us today to start the appeals process 630-360-2LAW (2529)