The Federal Appellate Courts operate like a well-oiled machine. They handle a lot of important and complex cases. This means that you have to be very persuasive and good with words if you want to win on appeals. A federal appeal is based primarily upon written briefs and short oral arguments (if the court is willing to entertain them). They try to solidify the jurisprudence (science of law) by creating a uniformity of law called stare decisis. Stare decisis makes it easier to obtain justice, as a matter of principle, in the appellate courts if you are a good litigant because the drama and emotional bias is absent.
Overview of the Federal Appellate Process
Notice of Appeal
Filing a notice of appeal is the first step in initiating a federal appeal. The notice of appeal is filed in the trial court where the proceedings occurred. This notice may be due in as few as 10 days after the final judgment in a case is entered on the record. This is not when you receive it in the mail. Therefore, having an appellate attorney already hired or your current trial counsel notified to receive notice of a final judgment by email is the best way to preserve your appellate rights.
Briefing the Issues
In a U.S. Court of Appeals for any of the 12 circuits (regions) of the United States, only issues that were preserved in the trial court record will be reviewable on appeal. This means that you must have the sworn testimony of facts, the supporting evidence, and the correct authorities of law to bring up the issues on appeal. Only a few pure questions of law such as a lack of subject matter jurisdiction may be raised for the first time on appeal.
The brief is a highly formatted and indexed document that puts together a convenient summary and picture of the proceedings below with a statement of the facts and proceedings. It then flows into various legal arguments subdivided into sections with citations to the record below. There are different standards of review on appeal such as abuse of discretion, de novo, clearly erroneous, and others. The brief must cite the proper standard of review for each question presented.
The appellant brief is the brief filed by a defendant that seeks to reverse, vacate, or modify the judgment below for reduced sentencing or to correct any one of innumerable errors in the arrest, trial, pre-trial, post-trial, or plea bargaining process. The briefs have strict page, word, and formatting restrictions that must be followed carefully. Even the footnotes have rules. Substantive arguments raised in the footnotes are ordinarily waived.
These documents require a great deal of skill to compile. They must be compelling enough that the public would see the grave injustice by citing evidence and laws that make a violation plain. The appellant’s opening brief is generally due within 45 days of initiating the appeal or otherwise receiving a briefing schedule and proof of docketing. This is followed by a counterbrief filed by the prosecutor’s office within 30 days or pursuant to local rules. The appellant may then file a short reply brief that counters any new issues raised by the appellee (government).
Although there may be numerous errors preserved in the record below, a skilled appellate attorney knows which ones are the strongest. Pursuing only one to three of the strongest claims on appeal provides the best chance for relief. The appellate court staff members are swamped with work and can become biased when they are forced to sift through a lengthy brief.
In most cases, they are trying to preserve the integrity of the court system when there are clear errors of injustice. Although they may try to whitewash them by writing misleading and open-ended opinions when they remand the cases, a steadfast and dedicated appellate attorney will continue to clarify the issues and make solid records of any errors perpetuated.
Possible Relief in a Criminal Case
On direct appeal, a judgment can be vacated, modified, partly vacated and partly affirmed, and/or remanded for further proceedings. The appellate court will enter a mandate of instructions for the lower court to carry out once a judgment order is entered. This can ultimately lead to release, a new trial, or resentencing.