THE WRITTEN BRIEF
"Inside of a hundred years the written brief has largely taken the place that was once reserved for oral argument. For that reason, an ability to write clearly has become the most important prerequisite for an American appellate lawyer [and] rarely is good oral advocacy sufficient to overcome the impression made by a poorly written brief," William H. Rehnquist, From Webster to Word-Processing.
The Ascendance of the Appellate Brief, 1 J. App. Prac & Process 1 at 3, 4 (1999).
"It is the brief that does the final job, if for no other reason than that the opinions are often written several weeks and sometimes months after the argument. The arguments, great as they may have been, are forgotten. In the seclusion of his chambers, the judge has only his briefs and his law books. At that time your brief is your only spokesman." Thurgood Marshall, The Federal Appeal, in Counsel on Appeal 139, 146 (Arthur A. Charpentier ed. 1968).
"Oral argument seldom brings you 180 degrees around, but if your tilt is, say 51-49%, it can make a big difference." Patricia M. Wald, 19 Tips From 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 17 (1999).
"We . . . observe that trial attorneys who prosecute their own appeals, such as appellant, may have tunnel vision.' Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of distinterested members of the bar, schooled in appellate practice." (Estate of Gilkison, 65 Cal. App. 4th 1443, 1449-1450 ).
AREAS OF PRACTICE
Mr. Whalen handles appeals all over the state of Kansas, including criminal appeals, domestic/divorce appeals, CINC/parental termination appeals, civil litigation appeals, habeas corpus appeals, sexually violent predator appeals, probate/conservatorship appeals, criminal and civil litigation research and motion production, petitions for review to the Kansas Supreme Court, trial and appellate strategy consultation, original habeas actions pursuant to K.S.A. 60-1501 and 60-1507.
BEFORE AN APPEAL IS EVEN FILED
In addition to handling state and federal appeals and other forms of post-conviction litigation, Michael provides appellate counseling at the trial level and assists trial lawyers in writing motions and jury instructions on major legal issues that arise during the course of complex criminal cases. Our Appellate Lawyers provide strategic counseling and advice to trial lawyers and their clients on issues before an appeal is eminent. For instance, we are frequently retained to assist in briefing complex legal issues at the trial level to ensure that arguments are properly preserved for appeal. Other aspects of litigation support include assisting trial counsel with pre-trial motions, jury instructions, objections during trial and post-trial motions. It is essential for prospective clients to understand that appeals are in fact very difficult to win. Appeals by their nature are arguments that experienced judges, prosecutors, or juries have made such a grievous error that it affected the entire outcome of the legal case. Each case is unique, and every client needs to understand that success in an appellate matter can never be guaranteed. As a dedicated appellate lawyer, I am willing to do the hard work of bringing a challenging case to court if I can see any ethical and realistic way to do so. If I cannot, I will tell you so directly and honestly.
APPELLATE EXPERIENCE COUNTS
Like anything, when a person concentrates their practice in a certain area, they get better at it. Appeals involve specialized skills that not all lawyers possess. In particular, trial lawyers and appellate attorneys possess different skills. Few trial lawyers are also gifted appellate advocates.
A FRESH PERSPECTIVE
The trial attorney can have trouble viewing the issues of an appeal objectively, having battled in the trenches in the trial court during which he or she formed fixed ideas about the strengths and weaknesses of the case. A skilled appellate attorney offers a fresh perspective on the case and can view the appeal objectively. The appellate attorney may see winning arguments that the trial attorney does not.
A trial attorney can have difficulty handling both trial work and appeals. Each appeal demands a significant block of time during which the attorney can focus solely on the facts and legal principles that comprise the appeal. Trial attorneys often find their time divided -- fielding telephone calls, appearing in court on other cases, conducting depositions, and meeting deadlines on motions. An appellate attorney has the ability to give individual attention to each appeal he or she handles.
OBJECTIVE REVIEW OF THE RECORD
The facts that may be raised on an appeal are limited to the record. An attorney may not raise facts to an appellate court that do not appear in the papers or transcripts. Appellate attorneys make the most of what is in the record and view the record as an appellate court would. Sometimes the memory of what transpired at trial, although not in the record, can hinder the trial attorney's ability to review the record objectively.
BROAD KNOWLEDGE OF THE LAW
An appellate attorney with years of experience develops a broad understanding of legal principles, trends, and arguments that are likely to win. Sometimes issues are novel or of first impression to an appellate court. In such instance, the appellate court is concerned with how the case will set precedent. The skilled appellate attorney draws on his or her broad knowledge of the law to fashion arguments based on analogous areas of law and favorable policy considerations that the appellate court should consider.
EFFICIENT, THOROUGH AND COST EFFECTIVE
An appeal can be a massive job involving the review of a record hundreds or thousands of pages in length and multiple complex legal issues. An experienced appellate attorney is typically more efficient and thorough in reviewing the record and conducting legal research, having developed proven methods to obtain all relevant facts and law to the appeal. Such efficiency not only results in better quality, but also a cost-savings to the client.
THE IMPORTANCE OF APPELLATE STANDARDS OF REVIEW
An experienced appellate attorney is keenly aware that the strength of an issue and the prospect for winning can depend on the applicable appellate standard of review. Trial attorneys are frequently unfamiliar with these standards and therefore can incorrectly evaluate the strength of an argument and its chance of winning.
MASTER OF PERSUASIVE WRITING
The brief is extremely important to an appeal. It is more important than the oral argument because it is received first by the court and has the greatest influence on the decision-making process. Appellate courts complain that many attorneys have poor writing skills. Advanced persuasive writing is not one of the primary skills typically possessed by trial attorneys. Most attorneys are not taught advanced persuasive writing in law school. An experienced appellate attorney should be a master of persuasive writing. The appellate attorney should make the complex sound simple. In subtle and direct ways, the appellate attorney employs many tools to enhance the arguments and persuade the judges. These advanced skills take years to develop and increase the chance of success.
TRIAL EXPERIENCE MATTERS
Handling an appeal correctly requires an appellate lawyer to have a detailed knowledge of the law, as well as experience in the practical application of the law in the courtroom. Appellate lawyer Michael Whalen, spent many years handling both trials and appeals before focusing his entire law practice on appellate court litigation. He has tried over thirty criminal jury trials, on charges from triple homicides to DUI. Michael also has experience in domestic trials, juvenile actions and civil litigation. He provides every case with a detailed review and carefully argues the important legal issues with precision. We have a reputation for superiority in representing clients in a wide variety of complex appellate arguments and disputes, including criminal appeals, and DUI appeals. As one of Kansas' major appellate law firms, The Law Office of Michael P. Whalen provides a high level of client service and responsiveness in its representation of business and individual clients on appeal. Our firm will also handle many types of custody, divorce, and family law appeals.
CONFIDENCE OF APPEAL
In appeal in Kansas, a client must have experienced appellate attorneys and an appellate litigation team that practices in every court of appeal in Kansas, including the Kansas Supreme Court. The appeal attorneys at The Law Office of Michael P. Whalen are committed to representation of clients at oral argument before every court of appeal in Kanas and the Supreme Court of Kansas. We invite you to contact us to review your appeal and case. Brownstone provides confidence on appeal.
THINKING FROM THE JUDGES' PERSPECTIVE
A point to consider is, "Will the attorney handling the appeal have the ability to analyze legal issues from the appellate judges' perspective?" This is a key appellate attorney trait that can greatly benefit your appeal. This is because the judges have to consider the long-term effects of their decision, and how it could change the future direction of a certain law. This looking forward at the potential effects of the appeal decision helps an appellate attorney decide the language and content of the appeal.
BECAUSE QUALITY COUNTS
Appellate judges appreciate appeals that are well prepared and delivered, incorporating pertinent information in the right way. This in and of itself is a skill that a strong appellate attorney possesses. An appellate brief filed by a well-known law firm or attorney isn't necessarily high quality or useful. The brief is only as good as the skills and knowledge of the person who created it, and if that person does not have appellate experience, you're risking the entire appeal outcome. Also, when an attorney has been deeply involved in a case for months or even years, they may lack the perspective and detachment that an appellate attorney will have. Your appellate attorney will bring a fresh perspective and create an appeal based on fact and law, not emotion.
WRITING IS EVERYTHING
As you decide when to use an appellate attorney, you should examine the writing ability of the attorney or law firm handling the appeal. The most brilliant trial lawyer may not be a great writer. Outstanding writing skills are a must for preparing a good appeal. A truly well-written brief will please the judges. The appellate lawyer knows the exact points of law that apply.
SOMETHING APPEALABLE HAPPENS DURING TRIAL
During the trial, you would want an appellate attorney to consult with when there is an interlocutory (non final order) that you think should be appealed. The appellate attorney can evaluate if it is appealable, and give an estimate on the chances of winning on that appeal. (Or the appellate attorney helps defend the order if it is being challenged -- this is the other side.)
PRESERVING THE RECORD
Yet another factor in deciding if you need an appellate attorney is this: Having an appellate lawyer involved at the pre-trial motions, during the trial itself, and at post-trial motions will ensure that the appropriate issues for appeal are properly preserved. This is a proactive way to help your case should the trial decision not go in your favor. (This is also true should you find yourself defending against an appeal).
Hiring an appellate attorney is especially helpful when your case is complex (or the trial was complex), because the appellate attorney will review every element of the litigation with a fine tooth comb, possibly finding things the client or their trial attorney missed. The appellate attorney has the ability to identify, early on, the key factors that would be pertinent in an appeal.
IT'S JUST GOOD BUSINESS
From a business perspective, it makes good sense for a non-appellate attorney to obtain an appellate attorney. It saves you time, which you can better spend on your own area of focus --and on new clients. And it increases your chances of winning a case -- or of reversing a bad decision.
Law is based on previous case law (you need to know all applicable cases -- appellate attorneys perform the research that identifies correct precedents and persuasive law from other jurisdictions) The appellate attorney can research and draft motions and pleadings to assist trial attorneys with difficult questions of law.