If you aren’t familiar with the appeals process for federal or state courts, you need an expert at your side. Here are the five characteristics to consider when choosing an appellate attorney for your Texas case.
What Do Texas Appellate Attorneys Do?
A Texas appellate attorney is a lawyer who has specialized training and experience in appellate law—a type of law that hones in on legal errors committed at the trial court level and seeks to overturn the trial court outcome. Appellate attorneys are knowledgeable in the nuances of appellate practice and procedure. They know how to present a compelling case to appellate judges in the District Court of Appeals (for Texas state cases) or the Fifth Circuit Court of Appeals (for federal cases).
While a trial attorney may focus on presenting the facts and the law in the light most favorable to their client, an appellate attorney usually focuses more on legal issues and how to persuade the court that their side should prevail solely as a matter of law.
The Nitty-Gritty of Texas Appellate Attorney Work
Appellate attorneys can be invaluable at every stage of litigation. At the early stage of litigation, they can provide such key services as:
- Spotting critical legal issues in a case
- Identifying claims and defenses
- Developing the trial strategy
- Determining the best venue to bring the case
- Determining the best trial counsel to hire
- Helping to establish the case’s theme, which will carry through later on appeal
- Separating issues that may qualify for motion practice or other pre-trial resolution
- Advising on alternative dispute resolution methods, such as mediation, arbitration, and other negotiations for settlement.
During litigation, appellate attorney services can include:
- Developing and updating case summaries throughout the trial
- Assisting with opening arguments; direct and cross-examination preparations; exhibit lists and proffers; closing arguments, jury instructions, and other trial submissions
- Preserving the record with an eye towards legal issues for appeal
Matters likely to arise during post-trial proceedings where appellate counsel can provide valuable services include:
- Reviewing the court’s decision for legal errors
- Requesting a statement of decision in a bench trial or the verdict in a jury trial
- Polling a jury
- Preserving all aspects of the record
- Obtaining transcripts
- Filing any motions which should be filed, such as a motion for reconsideration or a motion for a new trial
- Applying for a stay on the judgment as the matter heads towards appeal
- Preparing all documents for filing related to the pending appeal
Once the appeal begins, appellate attorneys are solidly in their wheelhouse. Actions they can be expected to take at this point include:
- Assessing and advising on the likelihood of appellate success
- Conducting detailed legal research on appealable issues
- Seeking out amicus briefs from individuals and entities with a vested interest in the outcome, who will be “friends” of the appellant
- Narrowing the factual and legal issues for the appeal
- Formulating the narrative of the appeal brief
- Researching and writing the appeal brief
- Mooting the arguments with other qualified attorneys to refine them
- Conducting oral argument of the issues before the appellate court
Federal Civil Appeals v. Texas Civil Appeals
But first, what is the difference between federal civil appeals and state civil appeals?
Notably, there are two venues where an appellate attorney will conduct the bulk of their specialized practice, depending on the trajectory of the trial court case and the legal issues in play. At the State of Texas level, there are fourteen courts of appeals with appellate jurisdiction in civil cases appealed from the Texas district or county courts. Each appeals court is presided over by a chief justice and has between three and thirteen justices total. Civil appeals in the Texas Court are conducted following the Texas Civil Practice and Remedies Code.
Some matters may be brought before the Federal Court of Appeals for the Fifth Circuit, encompassing the federal district courts located in Texas, Mississippi, and Louisiana. Civil Appeals in the Fifth Circuit are dictated by the Federal Appellate Rules of Procedure.
5 Characteristics of Expert Appellate Attorneys
Knowledge and Objectivity
These two traits should be taken as one for the purpose of selecting the best appellate attorney. This is because it’s just as important to know the substantive and procedural laws of appellate practice as it is to know when to hold back and when to use them. You’ll want to choose an attorney who has a track record with appellate proceedings. There’s more to appellate law than book knowledge, and missteps can be critical. Don’t be afraid to ask about your attorney’s experience and years working specifically with appellate cases – the right attorney will be expecting such questions. Beyond aptitude, appellate counsel are often defined by their ability to see the big picture when they become involved in a case. They are logical thinkers capable of analyzing the strengths and weaknesses of their client’s position while remaining neutral. Their passionate advocacy is in reserve until the time comes to work on arguments and present them to the appellate justices.
For an appellate matter, you want the attorney you speak with and consult on to see the matter through. For this, look to firms with attorneys who have been with them for a good stretch of time, and look to attorneys who can discuss how prior cases they have worked on resolving. In addition, appellate decisions are often accessible online, so you can cross-reference actual cases the attorney worked on while conducting your own due diligence on the attorney.
Honesty about the Case and the Costs
Hiring an appellate attorney can be expensive, and appellate cases can take years to reach a resolution. For these reasons, your attorney owes it to you to be completely transparent in regard to your likelihood of success, as well as to the anticipated costs. (An experienced appellate attorney, as mentioned above, will have the best understanding of commitment of time and resources, which translates to your fees). In terms of costs, it is important to have an open and honest conversation with the attorney about how the attorney will be paid. After all, the attorney must work for a living, no matter how passionate they are about your case. While some issues may be on a contingency arrangement, meaning the attorney accepts payment only when you win, many appellate decisions are unrelated to monetary verdicts and better suited for hourly fees.
An Analytical Mind
Due to training, natural ability, and years of practice, appellate counsel excel at legal research and analysis, which are important to success at all stages of an appellate case. They are also interested in and follow legal developments and trends in their jurisdiction and sometimes even across the country, which can be valuable in assessing and reassessing a case. All of these organic developments can often become the building blocks of arguments. Finally, appellate attorneys’ ability to distill and explain legal philosophy and principles is more than just a fascinating talent; it is essential to winning over the justices who will be hearing your appeal.
A Persuasive Voice
Lastly, appellate counsel are talented and passionate advocates. They are storytellers who understand the value of developing a roadmap for each case and staying on it. They are respectful when presented with questions and even challenges of their position by the opposing counsel or the bench. But they do not give in or give up on your case.
Partnering with the Best Appellate Attorneys in Houston
When you are trying to figure out how to navigate the appeals process, you will need Texas lawyers who have the right skills and experience to help you. Houston attorney Seth Kretzer have worked on countless Texas appeals for more than thirty years. Contact our firm today through our website or by phone at 713-775-3050 to discuss your concerns.