An Appeal is Not a New Trial or a Rehearing of the Evidence.
When potential clients ask about the possibility of an appeal, usually they have a new trial or a rehearing of the evidence in mind. An appeal and a trial have virtually nothing in common.
In a trial, evidence is presented for the first time in the courtroom before the factfinder which is either a jury or the judge. During the course of the trial, the judge makes decisions about what evidence should be heard, how it should be heard, and how it should be treated by the factfinder. Depending upon the issue at hand, the judge may have wide to little or no discretion in how he makes his rulings. And those rulings may or may not have a material effect on how the evidence is weighed.
An appeal does not amount to a “do-over.” In an appeal, the appealing party argues that the trial judge erred in forming or executing his rulings on the trial evidence. The appealing party is concerned with legal errors, not witness credibility or how much weight any single piece of evidence was given by the jury or judge.
The mechanism by which the appealing party prosecutes his appeal is the written brief. The party sets out, in written form, the trial court’s error, the underlying law, and how the error requires some kind of remedy. The non-appealing party files a responsive brief and the court of appeals decides whether the trial court committed a legal error, and, if so, exactly what remedy is needed. Remedies may include a new trial where the parties get a “do-over” trial in the district court.
How do I know I have an appeal?
Very often litigants desire to appeal an unsatisfactory judgment or sentence, but without any thought as to whether there may be an appealable issue. Often an appellate lawyer cannot tell you if there is a such an issue until after he has read through the reporter’s transcripts and the volumes of records. The investigation of the record requires a lot of time and the appellate lawyer will have to charge you for this time which can range anywhere from $500 to tens of thousands of dollars, depending upon the case. Many litigants do not want to retain counsel unless they can be assured that their appeal will be successful, but the appellate lawyer cannot guarantee success and he cannot render an informed opinion on the merits of an appeal until he is able to review the record.
What are my chances of success?
Appeals usually entail limited options for relief. Chances of success vary from court to court, but statistics show that you have a 15 – 25% chance of complete reversal. You should be aware that if you have a money judgment against you, an appeal will not stop execution on the judgment. An appellate bond is necessary to stay execution pending appeal. Similarly, if you have been convicted of a crime, chances are that you will be imprisoned during the course of your appeal.
When will I go to court?
Unlike a trial, an appeal is based upon facts already established in the record. An appeal deals mainly with legal briefs and oral arguments. Oral argument concerns legal argument to the appellate panel and no witnesses or parties are allowed to speak.
How much do you charge?
The short answer? It depends.
Many firms have set hourly rates or flat-rates for categories of cases. Since our firm handles a small caseload and many of our cases involve difficult or unique questions of law, we set our fees for each case based upon the factors set out in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997). In Arthur Andersen, the supreme court held that the following factors must be considered in determining the reasonableness of attorneys’ fees:
- the time and labor involved, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly;
- the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
- the fee customarily charged in the locality for similar legal services;
- the amount involved and the results obtained;
- the time limitations imposed by the client or the circumstances;
- the nature and length of the professional relationship with the client;
- the experience, reputation, and ability of the lawyer performing the services;
- whether the fee is fixed or contingent on the results obtained or uncertainty of collection before the legal services have been rendered.
In addition to lawyer fees, the client is obligated to pay costs, including but not limited to, filing fees, transcripts, printing/copying costs, couriers, etc. These costs can range anywhere from $1,000 to over $10,000. Since most appellate work is done in the early stages, a large retainer is customarily required.
Shouldn’t I have my trial lawyer handle the appeal?
Very often the trial lawyer of the case agrees to handle the case on appeal. While some trial lawyers are eminently qualified to prosecute appeals, the appellate process involves a different skill set. Instead of psychology and oratory, the appellate practitioner deals with caselaw and legal error. It is often beneficial for either trial counsel or the client to seek out independent appellate counsel to prosecute an appeal. The appellate lawyer is able to look at the case detached from the emotional pull involved in the trial process and examine any potential legal error with fresh eyes.
Ruggero Aldisert, Senior United States Circuit Judge of the Court of Appeals for the Third Circuit, had this to say about the regular trial lawyer handling appellant argument:
Arguing a case before an appellate court is not easy today. Judges know this and lawyers must understand this. It takes a special kind of litigator, and top-flight litigators are hard to come by on both the trial and appellate levels. Most so-called litigators are deposition takers. They learn bad habits by taking and defending depositions in an unnecessarily confrontational atmosphere in which ad hominem attacks on opposing counsel are more the rule than the exception. But even when litigators get before a trial judge, their performance is more fact-specific than law-oriented. … Lawyers often “wing it” in arguing legal questions on the trial court level. (Ruggero Aldisert, Winning on Appeal at 33.)
How long with an appeal take?
Generally, it takes 1 – 2 years for the appellate court to hand down a decision.
Representative Case Results
Below are a few representative case results. Please be advised that individual cases will vary depending upon the facts and the law relevant to each case.
United States v. Harris, No. 08 – 11151, 2010 U.S. App. Lexis 2754 (February 9, 2010) – Our firm represented one party in a consolidated case involving the application of the Sentencing Guidelines in fraud cases. We argued that the trial court misapplied the Fifth Circuit’s prior holding in United States v. Sowels in calculating the amount of loss and also that the court had erred in the calculation in the number of victims. The Fifth Circuit issued a significant opinion that clarified its prior holding in Sowels and also provided the federal district courts with the proper framework to determine loss in future cases. The court also sustain our appeal on the calculation of victims and remanded the case for resentencing.
United States v. Inman, 411 F.3d 591 (5th Cir. 2005) – This appeal involved the district court’s authority to order criminal restitution. In this case, the district court ordered the defendant to pay restitution for transactions that were not included in the original indictment and that occurred over two years prior to the temporal scope of the indictment. On appeal, the Fifth Circuit Court of Appeals ruled in favor of the defendant by holding that the district court’s authority to order criminal restitution could not exceed the temporal scope of the four corners of the indictment. The case has been cited in fifteen appellate opinions and eight law reviews.
United States v. Austin, 432 F.3d 598 (5th Cir. 2005) – On appeal, our firm presented the issue of whether the application of the Supreme Court’s remedial opinion in Booker to a sentencing hearing violated ex post facto and due process principles where the underlying offense occurred before the Booker decision. The Fifth Circuit Court of Appeals held that Booker’s remedial opinion could be applied although the offense had occurred prior to that decision. The case has 44 citing opinions, including the 2nd, 4th, 6th, and 7th Circuits and listed in the annotations of three federal statutes.
