Criminal appellate practice is an inexact science. There is not any specific
approach or exact formula to present issues to the court. However,
there are some general, practical suggestions that can improve the quality of representation in every appeal.
First is to preserve your issues; second emphasize quality versus vague arguments; third get an editor; and lastly understand your client’s needs.
Preserve Your Issues!
In many cases, the most important work on an appeal happens before the notice of appeal is filed. Unless you preserve an issue in the district court, it is
unlikely that the court of appeals will even consider it, let alone reverse because of it.
Lawyers who fail to preserve an issue below face the “heavy burden”
of proving plain error before the court of appeals. United States v. Webb, 950 F.2d
226, 231 (5th Cir. 1990). As the Supreme Court held in United States v. Olano, an appellate court cannot consider an unpreserved issue unless the defendant
shows (1) error (2) that was plain and (3) that affected substantial rights. 507 U.S. 725, 732 (1993).
Emphasize Quality Over Vague Arguments.
The courts of appeals face an ever-increasing caseload. To move cases more quickly, most circuits assign staff attorneys to review criminal appeals;
many of these appeals are chosen for summary disposition. The emphasis on speedy disposition means that the court will spend less time on your appeal.
Attorneys need to respond by being more selective in choosing issues for appeal, and more direct in arguing the issues they do choose.
It is generally better to present a few strong issues in your brief. Weak issues reflect badly on the stronger points, and you want the limited time the
court will allot to your case to be spent on your strongest contentions. As the Supreme Court has cautioned:
Find an Editor.
Much of what trial lawyers do in court is spontaneous; while witness examination and jury argument can be prepared in advance, trial attorneys by
necessity must respond quickly and argue extemporaneously in the courtroom. Many federal criminal appeals are decided without a hearing; in these cases, the brief will be the only argument you get to make. Written arguments limit spontaneity, but they also give appellate lawyers the chance to fix their errors before they occur, through editing.
After drafting your brief, find someone to read it. Preferably, you should
go to a lawyer with experience in the area, but any literate person will
do in a pinch.
They may be able to make specific suggestions for improving clarity, removing convoluted legalism, or dealing with bad facts.
- Understand Your Client’s Needs.
Of all the things you must do as an appellate lawyer, perhaps the most
essential is to find out why your client wants to appeal. Defendants appeal
because they are unhappy with the events in the trial court, either with their convictions or with the severity of their sentences. However, you should not
assume that a defendant who appeals wants to challenge his conviction and sentence on any possible ground. The defendant may have appealed for reasons
that have little to do with the relief a court of appeals can order.