HOW DO YOU START AN APPEAL?
An appeal begins by the filing of a Notice of Appeal. This is a relatively simple document to file but it must be filed within the time limits set by law or appeal rights may be forever lost. If you are contemplating an appeal, it is important to consult an attorney as soon as possible to ensure that you do not miss the deadline.
THE ART OF APPELLATE ADVOCACY
An appeal is not the second opportunity to re-litigate the trial. Appellate advocacy focuses on legal error and judicial discretion, not witness credibility. There is no discovery or witness examination, only legal argument. The trial attorney's charisma with the judge, jury, and witnesses is no longer relevant.
The most common mistake is to attempt trial advocacy in the appellate court. The practice of law in the appellate court system requires the specific skills and talents of appellate advocacy.
WHERE THE PEN IS MIGHTIER THAN THE SWORD
On appeal the battle is fought primarily on paper, the appellate brief. Appellate brief writing requires the level of research and writing produced by an appeals lawyer.
The aim of the appeals lawyer is to answer two questions for the Appeals Court:
Was the Trial Court's conducted in accordance with the law (including procedural and evidentiary rulings that, if erroneous, might alter the factual findings); and,
Was the law correctly applied to the facts determined.
Trial Court styled writings are inappropriate and insufficient for submission as an appellate brief. Attorney Edward Fogarty produces legal briefs that are well researched, well documented, well written, and visually pleasing. The old adage is true, you only have one chance at making a good first impression!
A further advantage for Attorney Fogarty: he spent ten years as a highly respected journalist before entering the practice of law. As a journalist, Mr. Fogarty spent years fine-tuning a writing skill that is clear and persuasive - valued qualities in any appellate brief!
THE REALITY OF APPELLATE ORAL ARGUMENT
Appellate advocacy is nothing like Trial Court advocacy. Oral argument in the appellate court is severely time limited and tightly controlled by the Court. The appeals lawyer has one opportunity, consisting of mere minutes, to plead your case to the appellate court before decision.
Preparation for oral argument is time consuming and requires the same precise analytical skills as appellate brief writing. The appellate oral advocate must be well versed with the facts, trial record, and law of the case for presentation. The art of appellate oral advocacy requires review of the case through the plethora of questions that the appellate court could raise at oral argument.
The appellate court possesses the discretion to assign a case to oral argument. When scheduled, oral argument is a tool by which the Justices of the appellate court seek answers to their many questions prior to ruling. Oral argument is not an opportunity to orally present the written brief. It is a pressure packed opportunity to persuade the appellate court to find in your client's favor through answers to the Justices' questions.
WHAT IS APPELLATE PRACTICE?
Once a judge or jury has made a decision or returned a verdict after a trial, that is not necessarily the end of the case. Any party who disagrees with the result may try to change it or to obtain a new trial by having the case reviewed by a higher court. This is called an "appeal". Appellate Practice concerns the representation of parties who are involved in an appeal, including those who request the review and those who seek to confirm the original decision.