Top Five Questions to Ask Your Trial Attorney Going Into Appeal
1) Do you regularly practice before the federal appeals courts?
Appellate and trial proceedings are very different. There are different rules, audiences, skill sets, time lines, and, most importantly, different components. An appeal consists of at least one written brief and sometimes an oral argument before a three-judge panel, if the court so chooses. Ultimately, the most important aspect of an appeal is the appellate brief. Drafting a successful brief requires a unique skill set that often takes years of practice to develop. Ask yourself this question: Would I hire an attorney who did not regularly practice before the trial courts to handle my case at trial? If the answer is no, then why would you hire an attorney who does not regularly practice before the federal appeals courts to handle your federal appeal?
2) Did you obtain appellate experience serving as a judicial law clerk to a federal appeals judge?
Your audience on federal appeal is not a jury or trial judge. It is three federal appellate judges and their judicial law clerks, who examine cases on appeal differently than a trial judge or jury. There is no better way to obtain insight into the federal appellate process than to serve as a federal appellate law clerk. This insight allows an experienced appellate attorney to craft and shape arguments that resonate and persuade the target audience.
3) Can you send me a copy of a legal brief you recently filed in the federal appeals courts?
Many attorneys say they have experience on appeal, but not all attorneys have recent experience in federal appeals courts or have represented clients in your particular appeals court. Asking for a copy of a brief will allow you to examine the attorney's work product on appeal. Don't be afraid to compare it to the work of other appellate attorneys. You will likely be able to determine within a few minutes of reading an attorney's legal brief whether he or she is a skilled appellate writer.
4) Does your firm have a dedicated appellate attorney who can assist with the unique requirements for appeal?
Many attorneys and law firms market themselves as a "jack of all trades." Others may bring in the "appeals guy," who has some experience handling federal appeals. Ask whether the attorney works exclusively before the appeals courts or whether he or she practices regularly before trial courts or administrative agencies. Ask for a percentage breakdown. If the attorney does not regularly or exclusively practice before the appeals courts, again ask yourself the question in #1 above.
5) Do you plan to raise the same arguments made before the trial court?
Ask any federal appeals judge or law clerk what they think is the most frustrating thing an attorney can do on appeal. At or near the top of every list will be the answer that the attorney simply recycles or regurgitates the exact same arguments that were raised in the trial court. A federal appeal is not the time to repeat trial arguments verbatim. It is a time (and an opportunity) to take a step back and examine the client's position with respect to every matter in the case to ensure that the client is advancing the best possible position on federal appeal. Experienced appellate attorneys are well versed in the art of examining the case record with a fresh set of eyes to ensure the highest likelihood of success.
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