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Moreover, appellate law is quite different from trial law: there is no jury, no discovery, no witness testimony, and no offering of evidence. Arguments are made primarily through an appellate brief and then supplemented with oral argument. Instead of being heard before a single trial judge, an appellate case is heard before a panel of 3-7 judges. The procedural and strategic issues on appeal are very different from other types of litigation. Valarie Linnen has experience in over 200 appeals and postconviction cases (state and federal) in all stages of an appeal. Call today for a complimentary consultation: 888-608-8814
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Appellate lawyers view the case from the same perspective as appellate judges. Because the appellate lawyer often is not involved in the trial phase, the appellate attorney views the case from the same perspective as the appellate judge—through an objective review of the factual record and the legal issues rather than based on information and impressions formed during pretrial discovery and trial. This perspective allows the appellate attorney to offer a dispassionate evaluation of the appeal because the appellate lawyer, like the appellate judge, is unburdened by preconceptions and emotions formed during the trial phase.
Appellate rules of procedure are different from trial-court rules. Appellate practice is governed by complex procedural rules different from trial-court rules. And like all rules of procedure, the appellate rules have many traps for the unwary. The appellate attorney is intimately familiar with the appellate rules, while most trial lawyers are not, putting them at risk of making mistakes that can compromise their client’s rights or even cause outright dismissal of the appeal.
Appellate law requires skills different from trial litigation. Successful trial lawyers excel at gathering evidence and then presenting it in a coherent fashion to a trier of fact while reacting swiftly to unexpected developments in the courtroom. By contrast, the effective appellate lawyer is adept at persuasive writing and the oral presentation of complex legal concepts. The skillful appellate lawyer is a superior writer, legal researcher, logician, and oral advocate.
Appellate lawyers know their audience—the appellate judges. Capable trial lawyers gain an advantage by knowing the nature of the judges and juries in the jurisdictions where they practice. Appellate attorneys bring the same advantage to appeals through their knowledge of the personalities and inclinations of appellate judges.
Appellate specialists are skilled oral advocates. Most appeals culminate with an oral argument to a panel of three or more judges. An appellate oral argument has no corollary in trial practice, where legal argument, when it occurs at all, is to a single trial judge. The effective oral advocate is not only fully conversant with the facts and legal issues in the case before the court, but is also familiar with related areas of law and can thoughtfully address judges’ concerns about how other areas of law will be affected by a decision in the pending case.