Written by attorney Geanine Towers

Issues of "Appealability," Will an Appellate Court hear your case?

The Appellate process is unspeakably difficult to navigate by a pro se litigant. In other words, if you don’t have counsel, no matter how well you argue, no matter how right you are, you can and probably will still lose your appeal. It is not uncommon that meritorious cases filed by appellants without counsel are dismissed for failure to comply with scheduling orders and other procedural requirements. This frustrates and disappoints litigants. Often a person who has been aggrieved (has received a ruling against his interests) will become alienated by the system to the point of letting important deadlines and requirements fall by the wayside. More importantly, even if every deadline is met and all procedural requirements are rigorously followed, writing an appellate argument is an art. For this reason, even most experienced trial practitioners do not undertake to perfect and argue their own appeals.

So often a successful appeal hinges not only on whether the aggrieved party’s position had merit (was legally correct), but whether the issues had been properly preserved at trial. If an issue was not brought before the trial court’s attention and argued comprehensively, that issue may be foreclosed for appellate review. Likewise some issues are have not developed to the point where an appeals bench may hear them. They are not ripe. Also, sometimes appeals are disallowed because the person bringing the appeal was not the person legally injured by the decision. That person has no standing. Fleshing out those issues first and foremost is key to presenting a successful appeal, and not wasting your time and money on appellate practice that will lead nowhere. It can also identify where a successful argument may be made for an exception to the rules barring certain claims on the basis of lack of “appealability."

After thoroughly interviewing you, a good appellate attorney will first analyze whether your case may be heard. He or she will then then comb through the transcripts, and the findings of fact, identify all relevant legal issues and thoroughly research them, using all the tools at his or her disposal. Those include Westlaw, the attorneys' personal library and law libraries at law schools and bar associations. Any competent appellate attorney will develop an efficient and comprehensive strategy on appeal, which conforms to the standards and practices expected at the appellate courts. However, it is the rare or superb attorney who may also create meritorious argument for exceptions to the rules of justiciability and provide principled, balanced and appropriately creative or novel substantive arguments.

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