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Can I raise new arguments in appeals Court bc my atty failed to raise args and evidence directly relevant to my case.

New York, NY |

My attorneys failed to bring arguments and evidences that directly affected the merits of my case. For exam, i was sued for fee applcation account stated and they never raised the objections I had or evn asked for my affidavit. They also didnt tell the Court abt my intention for malpractice against the atty who filed his fee app. Now i have a jdgement against me for fee. I want to appeal the account stated but all the objections and events that took place never made it in at the trial court level due to oversight by the attys.

Attorney Answers 4

Posted

You cannot likely raise issues that were not raised at trial. It sounds like you want to re-try the case differently. These are attorney judgment calls that will not be overturned by the court simply because you want a new or different trial. If you do have a right to a new trial on other grounds or your counsel was ineffective (legally, speaking) that's a different story. It's worth a consultation with a new attorney with eye toward reviewing the work of the old attorney. But in short, your disagreements with the lawyer's strategy alone won't form the basis for appellate arguments.

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Asker

Posted

I want to Raise issues on the ground of ineffective assistance of counsel. My atty failed to bring forth the evidences and testimony that directly affected my case. Can i still Do that?

Anthony Michael Solis

Anthony Michael Solis

Posted

You may not be able to raise those issues on direct appeal, but rather afterward on a collateral attack, but it's best that you get a consultation with an appellate attorney to determine the best path forward. You may not be qualified to evaluate these issues legally and attorneys on this public forum don't have the record of the case before them, so really can't adequately advise you.

Posted

Certain legal arguments that appear on the record can be reviewed on appeal even if not raised below but it is technical stuff. Generally, any fact arguments are not preserved for appellate review if not raised in the lower court.

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Posted

Can u explain what u mean by technical stuff

Posted

Short answer: 'no'.

NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this matter.

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Posted

Your scenario is complicated but there is another answer here -- you may be able to raise ineffective assistance of counsel in an appellate court despite what you are being told here. I have done so a few times and while it doesn't usually work, it doesn't mean you can't raise it. I raised it because my clients asked me to and they honestly had no other argument. So it doesn't usually work, but it doesn't mean you can't raise it. You need an appellate attorney, someone who knows their way around the appeals courts with ease and who does appeals like yours. Appeals attorneys are specialized and do this all the time. You will not, however, be able to raise new arguments or new evidence. Not on an appeal. Another way to attack a judgment is to find an attorney who may be able to help you re-open your case. It depends on the facts which are not sufficiently stated here. Best of luck to you.

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