Dixon & Moseley, P.C., attorneys believe selecting an appellate attorney is the key step in ensuring your appeal is handled as well as your trial in order to provide you with the best opportunity to obtain a reversal. In many cases, it makes a great deal of sense to have your trial counsel continue and handle your appeal. There are several reasons for this. Most importantly, your trial attorney already understands the controlling law applicable to your case and minute and detailed factual aspects of the case as well as anyone can. With a different appellate lawyer, there is inherently some duplication of time and cost associated with getting up to speed on the controlling law and dispositive facts of your case to properly brief the case.
Three Considerations in Retaining Appellate Counsel.Nevertheless, there are times trial attorneys and their clients part ways at the point of appeal. In most cases, trial attorneys simply do not do appellate work. This is not surprising as appeals are completely different from trial practice, and for this reason, some of the skills that make a good trial attorney, are incongruous with effective appellate advocates. For example, some trial attorneys do not like the isolated environment that goes with researching a case for appeal and reviewing the exhibits and reading the transcript. And then the writing of the briefing takes more lonely hours. They just want to be litigators. Ultimately, different attorneys have different skills based on their personalities and legal interests.
Further, trial attorneys and appellate attorneys have a very different skill set necessary to achieve excellence, although some attorneys have developed and possess both. A trial attorney should be able to handle any unforeseeable circumstance that arises during litigation. Yet, the hallmark of a good appellate attorney is not to have any unforeseeable issues that arise on appeal that are not fully accounted for in his or her briefing or ability to address such by motion practice. Ultimately, there are no hard and fast rules for selecting a good trial or appellate attorney. However, to aid Readers in making informed selections as to selecting appellate counsel, some of the talking points with, or research about, proposed or potential appellate counsels might include the following:
- Are appeals a routine part of your practice?
- Do you focus on any certain type of appeals, such as only civil appeals or only criminal appeals?
- Have you orally argued cases before the appellate courts you practice in, such as the Court of Appeals of Indiana, the Indiana Supreme Court, the Seventh Circuit Court of Appeals?
- What is your appellate philosophy, such as how do you address weak issues?
- Who will handle the oral argument if it is ordered?
- What role and/or interaction will you have with my trial counsel?
- Who will handle the legal necessities, if any, after the appeal concludes, such as if my case is reversed and remanded to the trial court?
- How much should I budget for the foreseeable aspects of the appeal?
- Will I be involved with you in the process of perfecting, researching, and writing the brief?
- How do you select the issues to raise?
- What can I do to help the process go along more smoothly and what do you need from me (such as motions and pleadings, a timeline, and the like)?
- Do you have briefs, opinions, and oral arguments I can review and/or watch
- What would you do (or not do) if you were in my situation insofar as appeal is concerned?
- Can we agree to disagree on issues that are important to me and you will still brief them?
This noted, after you have these and/or other questions researched and/or answered, it is critical to make a clear decision as to counsel of your choice. Frankly, in today’s electronic world, there should be ample ability to make a fully informed choice about an attorney, appellate attorney or otherwise, you do not know. However, once you make your selection, do not keep second-guessing your decision as it only undermines the attorney-client relationship. Remember the time is running to select and retain appellate counsel as an appellant only has thirty (30) days from the time the final order is issued to perfect an appeal by filing a timely and accurate Notice of Appeal.
As a potential appellant, Dixon & Moseley, P.C. is at the ready to answer these questions for you, in a straight-forward format during an appellate consult. If the reflect answers reflect your expectations of your counsel, then perhaps we should be your appellate team.
