Frequently Asked Questions

What is the difference between an appellate court, and my hearing or trial?

Your trial court had just one judge or master sitting, or a jury decided the facts of your case. An appellate court is different. It has neither jury box nor witness stand. Rather there is a panel of judges whose decision reflects the collective wisdom of the court. There is no new evidence in the appellate court; its decision is based on the existing record from the trial court.

Because appellate argument is a conversation between the lawyers and the court, litigants generally sit with spectators behind the bar, not at counsel table. Unlike trial courts, litigants generally have no obligation to appear at appellate court proceedings.

Part of the appellate court’s job is to establish precedent. Unlike the trial court, the appellate court must thus consider not just the facts of your case, but how its outcome might affect future cases.

What is an appellate record?

The appellate court makes its decision on the existing record from the trial court. Generally the record is closed as of the end of the trial court proceeding. That means the appellate court does not hear any new evidence, or see any new documents. The record consists only of documents and exhibits that were filed in the trial court, documents and exhibits that were admitted as evidence in the trial court, and transcripts of the hearings held in the trial court.

Why shouldn’t my trial lawyer handle my appeal?

Trials are full of human emotion, affected by facial expressions, voice intonations, and the presence of opposing parties sitting near each other in the courtroom. But an appellate record is cold paper, largely devoid of emotion. Because of this, trial attorneys are often surprised at the difference between what they thought was in the record and what it actually contains. An appellate attorney, however, starts with the appellate record, just like the appellate court. The appellate attorney is therefore not colored by trial strategy, and can reexamine, in the relative luxury of hindsight, strategic choices made by trial counsel.

Why should I hire an appellate lawyer?

An experienced appellate attorney is familiar with the specialized rules of the appellate court, and with the members of the court itself. Just like you might not want your electrician installing your plumbing, appellate and trial counsel often have different sets of skills and methods.

Also, it is hard to be a good trial lawyer and an effective appellate attorney at the same time. A trial lawyer is pressured by numerous competing deadlines, whereas appellate brief writing and oral argument preparation require large blocks of uninterrupted time.

I've heard that appellate courts have specialized rules. Is this true?

Yes. Appellate court have technical rules regarding such minutia as how briefs must be printed, the size of their type, the color of their covers, and how many words they contain.

Because I've conducted numerous appeals in several courts, my office does not make the type of technical errors that sometimes trip-up less experienced counsel

Can I save money by repackaging my trial pleadings as an appellate brief?

Probably not. There generally is a distinction between what is persuasive to a trial judge and an appellate court. Trial courts are mostly concerned with the facts of a particular case. Appellate courts, however, make precedent, and are therefore also concerned with the next case and the body of law generally.

[A]ppellate practice entails rigorous original work in its own right. The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product. Rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.

In re Marriage of Shaban, 88 Cal.App.4th 398, 105 Cal.Rptr.2d 863 (2001).

Should I hire an appellate attorney early in the process, or wait until my brief is due?

The earlier the better. Brief-writing takes time, and asking an attorney to meet an imminent deadline will result in a poorer product. If you are considering filing an appeal, you may want the appellate attorney to be involved and to file the appeal. This is especially true if your case is subject to a certiorari process in the appellate court, so that the appellate attorney can help state your issues in a way that will maximize the chances of acceptance. In some cases it even makes sense for the appellate attorney to participate in the final stages in the trial court to ensure that potential appellate issues are adequately raised in the trial court.

Why shouldn’t I hire a big firm rather than a solo attorney?

Appellate cases are conducted mainly on the paper record. Attorney-client contact can be effectively accomplished without extensive meetings. Big firms tend to have big offices, more overhead, and tend to be more expensive.

In addition, larger firms hustle for their clients’ other legal business. As a niche appellate litigator, I do not compete with trial lawyers; when a client needs post-appellate representation, I generally refer it back to their trial attorney, or other colleagues.

Why shouldn’t my trial lawyer contract with a “ghost” writer to write my brief?

Appellate judges routinely complain about ghost-writers. When the court has questions, it tends to want them answered by the person who most studiously researched the law and most thoroughly reviewed the record. Generally that is the person who wrote the brief.

What is oral argument?

Depending upon the issues your case presents, the appellate court may want to hear the parties’ discuss them. Oral argument consists of the lawyers presenting their cases, one at a time, to the appellate court. Generally the judges ask lots of questions, which tend to expose the weakest links in a party’s argument. Because appellate judges are also concerned about establishing precedent, their questions often involve how a particular case fits into the general body of law.

Lawyers with less experience in appellate courts tend to write a speech hoping to read it to the court. Effective preparation involves anticipating the possible questions, and formulating good answers. Oral argument requires an ability to think quickly while under attack, while keeping in mind both the facts of the current case and the broader context of the law.

What are standards of review and why do they matter to me?

The standard of review is the lens through which the appellate court will look at the issues in your case. If your case presents only factual matters that were disputed by conflicting witnesses or competing evidence, it is most likely that the appellate court will pay deference to the trial court’s resolution of those matters.

If, on the other hand, your case presents issues of law, the appellate court looks at them anew with little or no deference to the trial court. This is often called de novo standard of review.

In some cases, and often in federal appellate courts, the standard of review may largely determine the outcome of an appeal.

What does winning (or losing) my appeal mean?

Generally appellate courts can take one of three possible actions: affirm, reverse, or remand. If the court “affirms,” the judgment of the lower court remains as though the appeal had not occurred. If it “reverses,” the judgment of the lower court is undone. If the appellate court “remands,” the case is sent back to the trial court for a do-over as to some parts or all of the case. It is possible that an appellate court can affirm, reverse, and remand all in the same case, depending upon the outcome of each appellate issue.

What happens after my appeal?

After your appeal, there is sometimes some action that needs to taken by the lower court. If the appellate court affirms, generally the lower court must implement the upheld judgment. The same goes for a reversal. Sometimes implementing an affirmed or reversed judgment is quick and straight-forward, but if there are complex financial arrangements, for instance, it can be slower and more drawn-out.

If the appellate court remands, there will often be a new proceeding in the trial court. During it the trial court may hear new facts, and may have to re-decide in light of the appellate ruling.

What is “preservation”?

Appellate courts almost never consider an issue that was not both properly presented to, and decided by, the trial court. If an issue was not thoroughly presented – that is, “preserved” – in the trial court, no matter how important to a litigant or to the general public, an appeal is not likely to help. There are some exceptions, but they are rare.

What is your win/loss rate?

Whether a case is won or lost depends upon a lot of factors, including the law and – most important – the facts the case presents. I have both lost and won many cases. How often a lawyer wins or loses may reflect more about what types of cases and clients they work with rather than their persuasive skills. Thus, evaluating a lawyer’s performance on their win/loss record is probably not a viable measure of performance.

The shortcomings of evaluating lawyers by win rates are many. Not least of them is that so few cases ever make it to a win or loss. In criminal cases, the Administrative Office of the U.S. Courts says that 90 percent of defendants plead guilty rather than go to trial. Is a guilty plea a win or a loss? The answer, of course, is that it depends. And it depends on factors not readily visible from a docket sheet or data downloaded from a court.

In civil cases, the same is true. On average across court systems, only about 5 to 10 percent of cases go to trial. Of the cases that do not go to trial, many settle, but the majority are disposed of without even a settlement. Some are withdrawn, some are abandoned, some are merged, and still others are closed for clerical reasons.

Of equal concern is that, in the nuances of law practice, it is not always obvious what constitutes a win or a loss. If a company enters into a nuisance settlement to avoid protracted litigation and the accompanying legal fees, is that a win or a loss? If a PI lawyer settles a case for $10,000 when the defendant was secretly prepared to offer up to $50,000, which side was the winner?

Finally, there is the simple fact that some of the best lawyers take on some of the toughest cases, and sometimes they lose. In those cases, the fact of a loss is not a reflection of the lawyer’s ability, but rather a result of the lawyer’s courage and tenaciousness.

Robert Ambrogi, This Week In Legal Tech: Rating Lawyers By Their Wins And Losses (Feb. 3, 2017).

I notice that some cases are “reported” and some are not. What’s the difference?

Appellate courts of course decide all the cases that come before them. Cases which the court determines are useful as precedent for the future are “reported” in the permanent published record of the court. Others – generally those that are fact-based and involve settled law – matter most to the parties and may not be as useful for future guidance. These are often decided without a lengthy formal written opinion, and the court instead issues an order to the parties.

I have handled cases that have resulted in both reported and unreported decisions. The total number of appellate cases appearing on my Case List includes both.

How long will an appeal take?

Figure on at least a year in most cases. Some expedited cases can be much quicker, and of course some can take much longer. Please contact me for a consultation.

How much will an appeal cost me?

That depends upon a number of factors, including your position in the court below, whether you won or lost, how long your trial was, the size of the court record, and the complexity of the issues your appeal presents. Please contact me for a consultation.

Can my case be settled during appeal?

Most appellate courts have some sort of mediation program, and refer appropriate cases for mediation. Often, however, just the fact of filing an appeal may create incentives for settlement, as both parties anticipate the costs and delays that appellate litigation entails. Settlement can occur at any time during the appellate process. I have settled cases before, during, and after briefing; I once even settled a case during oral argument

Can my case be further appealed?

There are two steps of appeals in the federal system and in most states. New Hampshire, however, has just one appeal available – to the New Hampshire Supreme Court.

If your case presents a significant federal issue, it can be further appealed to the United States Supreme Court. Although Attorney Gordon has not argued there, he won a case he appealed to the United States Supreme Court.