John Wesley Hall Jr.

Appellate representation

Even excellent lawyers have clients who get convicted. Lawyers can only deal with the facts, and the facts often are not good. Then comes the appeal.

In the Arkansas state court system, there are two appellate courts: the Arkansas Supreme Court and the Arkansas Court of Appeals. They have different jurisdiction, and the Arkansas Supreme Court sometimes reviews decisions of the Court of Appeals. In New York, there is an Appellate Division for direct appeals and the New York Court of Appeals is the final appeals court. In federal courts, appeals are to the U.S. Courts of Appeals. There are twelve federal circuits. Arkansas is in the Eighth Circuit which sits in St. Louis and St. Paul, and New York is in the Second Circuit which sits in New York City.

Appellate work is vastly different than trial work. Except for oral argument (which does not happen in all cases), it is not done in a courtroom. Like trial lawyers, appellate lawyers are totally immersed in a case when they are crafting the appellate brief. They may work on nothing else for weeks at a time. A good appellate lawyer may take longer to prepare an appellate brief than the trial lawyer spent preparing for and trying the case. I have spent nearly a three weeks full time working on briefs in the U.S. Supreme Court.

When a lawyer handles an appeal, the lawyer is bound by the record made in the trial court, including the existence and scope of all objections. Objections cannot be changed on appeal; things not properly objected to cannot be argued. So, appellate counsel's hands are somewhat tied in what can be argued. But, with a good record, appellate lawyers can hopefully get a conviction reversed or at least lay the ground work for later post-conviction review in the state and federal courts.

Appeal briefs are important. Just as in failing to object in trial courts, issues can be abandoned on appeal by not arguing them and by not seeking discretionary review wherever it is available. But, not every objection is sufficient to reverse a conviction. In some areas, especially trial objections, trial judges have vast discretion, and the appellate brief has to show how that discretion was abused in the context of that case. That often makes those issues impossible to win, and it can be seen when reading the trial transcript. Appellate lawyers, like trial lawyers, have to use their judgment to decide on what to argue and how to present it.

No two lawyers will argue an appeal the same way. Clients have a right to know the quality of work of a lawyer they are considering retaining. Appellate briefs that have been filed in other cases are public records and they are neither privileged nor confidential. Ask a lawyer you are considering retaining to provide you with a sample of his or her work. I will e-mail past briefs to prospective clients in PDF format. (Please click here to see samples of my appellate briefs. I have had at least 100 oral arguments, including two in the U.S. Supreme Court. The link to the argument in Wilson v. Arkansas on the Preeminent [link] page. Many recent Eighth Circuit arguments are available on its website.

Appeal briefs are important. Just as in failing to object in trial courts, issues can be abandoned on appeal by not arguing them and by not seeking discretionary review wherever it is available. But, not every objection is sufficient to reverse a conviction. In some areas, especially trial objections, trial judges have vast discretion, and the appellate brief has to show how that discretion was abused in the context of that case. Appellate lawyers, like trial lawyers, have to use their judgment to decide on what to argue and how to present it.

The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult an attorney for individual advice regarding your own situation.
Copyright 2007 by John Wesley Hall, Jr. All rights reserved.
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