Do You Need a New Attorney in an Appeal?

Why Hire an Appeals Lawyer?

You Need a Fresh Set of Eyes, Clear Slate to Assess Case

skilled appeals lawyer winter park floridaHi I’m Eric Lanigan of Lanigan and Lanigan in Winter Park, Florida. I and my son Roddy do appeals cases, appeals work in Florida and  we’re often asked: “why would I hire an appellate lawyer vs. just having my trial lawyer handle the appeal?”

First of all if you’ve got a trial lawyer who understands the distinctions between appeals and trial work and the different style and methodology behind it, the answer is probably not.

Trial Lawyers May Focus on Past Issues

One compelling argument which is often made which I think has a lot of merit is that the trial lawyer tends to be continuously focused on the same things.

Whereas someone who’s going to come in and do the appeal brings in a fresh perspective and is not tied up in the minutia in what went on at the trial court level and so he can bring a fresh perspective and may see errors that occurred that the trial lawyer doesn’t at first recognize because they’re so focused on the things that to them were in error by the trial court.

So it’s a fresh set of eyes to review the case and to look for errors by the trial court.

Different Style Needed for an Appeal

There’s also very much I think, a difference in style in the presentation of an appeal vs. a trial. Especially if you’re doing a trial, whether civil or criminal that is before a jury.

Because every trial lawyer knows that you never know what minor fact a jury might hang their hat on and you want to get everything out there for the jury to consider. Especially if it’s something that you know that from a legal perspective that it may be relatively minor but from a juror’s perspective it will be a big deal. So you want to get everything in there that you think will influence the jury.

Well to a great extent in an appellate court is considerably different because the appellate judges are concerned about the application of the law. And they’re not really concerned about what minutia somebody in the jury might have thought was important.

An Appeal is a Review of Trial Court Judge’s Application of the Law

It is a review of the trial court judge’s application of the law. So on an appellate level, being concise is very important because the appellate judgesTop Florida Appeals Attorney Eric A. Lanigan are just reading briefs. They’re not sitting in the courtroom watching the witnesses come and go and the exhibits come and go and the lawyers objecting to each other’s questions.

The appellate judge is sitting in his office probably alone, reading these briefs probably one right after the other. And any appellate judge will tell you that the vast majority of briefs that they read are:
a.) way to long, and
b.) extremely boring.

So a lot of that has to do with trying to make the same arguments on appeal as you made at the trial level. While you may be talking about the same thing, the way you make the argument has to be quite different.

Complete Appellate Briefs Are About 100 Pages Long

An appellate judge is going to read the initial brief which is going to be anywhere from, let’s say, 20 to 50 pages long. He’s going to put it down, he’s going to pick up the answer brief which is the brief that the appellant writes in response. And that brief is probably going to be somewhere between 20, 30, 40 pages long.

And then he’s going to put that down and then he’s going to pick up the reply brief, which is the reply that the appellant writes to the answer. And that brief might be 15 or 20 pages long. So, he’s going to be reading over 100 pages of legal argument on a single case back to back to back.

Concise, Compelling, Interesting Briefs

You want to be concise and you want to be accurate and you want to be interesting in the context of the written word vs. let’s say interesting in the context of courtroom theatrics. You also need to be extremely accurate. You’re not talking to a jury anymore. You’re talking to another lawyer who is sitting as an appellate judge.

Every appellate judge will tell you: Don’t play with the truth. Just get it out there as it is and then, make your argument. They don’t like the facts being spun. They don’t like critical facts being left out.

They expect every lawyer at the appellate level to be accurate and complete in their presentation of the relevant facts.