When to Retain an Appellate Lawyer?

June 26th, 2017
Elizabeth Franklin-Best

Many clients, I find, have really no idea what an appellate lawyer does when they first find out they may need one. After all, everyone knows what trial lawyers do– Law & Order was probably the most popular show in the 1990’s, and there have been literally hundreds of television shows that follow the sexy and entertaining challenges of the criminal defense trial lawyer. The question of what an appellate lawyer does, and when you need one are closely related in my view, especially if the goal is to get out from under a criminal indictment or conviction (and of course, that better be the goal).

The simple answer is you need an appellate lawyer as soon as you decide you want to exercise your right to a trial. Trial lawyers are great at what they do best– trying your case to a jury of your peers. But if you lose, then you’re going to need a backup plan, and the earlier you get started, the better your chances of success. If you’re going to trial, then a consultation between the trial lawyer, you, and an appellate lawyer is critically important so you can be well aware of issues percolating in the appellate courts in your jurisdiction so you can use those issues to your strategic advantage. An appellate lawyer can also assist your trial lawyer in drafting motions to file and argue in trial court to better preserve the issues for when they need to be raised on appeal. An appellate lawyer can also assist a trial lawyer in making sure important issues are preserved not just for your state court appeal, but for future federal habeas corpus proceedings, too. In short, the assistance of appellate counsel at the trial level increases your chances of success at the appellate level if the jury convicts you. Many people think that appellate lawyers are just the lawyers you bring in once everything has gone to hell, but that’s not the best practice. If you’re serious about beating your case, then you’ll consider retaining an appellate lawyer as part of your long-term strategy.

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