Author – James E. Czarnecki II
This article, written by a Michigan appeal lawyer, explains why you should not hire your trial attorney to appeal your case. It also explains what you should look for when you hire an appeal lawyer to represent you.
The attorney who represented you at trial should not do your appeal. You must always hire another attorney to review your case. The trial attorney cannot distance himself or herself from the case because of personal involvement. Consider that the Michigan Court of Appeals was not intimately involved in your trial. The Court does not have preconceived notions about the legal issues. Everything the Court will learn about your case will come from a review of the transcripts. Your new appeal attorney should be in the same position as the Court. The new appeal lawyer has not prejudged your case or the issues. So, the Court of Appeals and the appeal lawyer will be in the same frame of mind about the issues. Both parties start the review with an “objective” look at your case. Because of your trial attorney’s personal involvement, his or her viewpoint will be subjective.
There is quite a difference between an objective and subjective viewpoint. When a person “objectively” looks at an issue, he or she does so from an unbiased viewpoint. An objective opinion is free from bias. The viewpoint is not tainted by the observer’s personal experiences. An objective opinion can be verified by looking at the facts.
A subjective view, on the other hand, is a viewpoint that has been influenced by personal experience in the matter. A situation is not looked at “coldly” as it is in the objective view. The subjective view is based in reality, however, it is tainted or clouded by personal bias. The subjective perceptions are influenced by emotions and personal involvement.
The dangers of hiring your trial attorney to act as your appeal lawyer
An objective view should be used in a criminal appeal. Since the trial attorney had been personally involved in the case, he or she has a strong personal viewpoint of the facts and issues. The attorney’s perceptions are formed during trial preparation. After reviewing the police report, evidence, and interviews with witnesses, the attorney develops the “defense theory” of the case. This theory is presented to the jury through witnesses, evidence, and arguments. Your trial attorney has developed a bias in your favor. This is a positive for you at trial. However, in an appeal it will do you a disservice.
The trial attorney performs many tasks at trial. The attorney listens to witness testimony, thinks of objections, compares the evidence to the testimony, takes notes of the witnesses key statements, listens the client’s comments and input, and pays attention to the jurors – all at the same time. The fast paced nature of the trial does have an impact on an attorney’s perceptions of what occurred during the trial.
In every single appeal done in our office, we interview the trial attorney to get his or her perspective of the trial and legal issues. On many occasions the trial attorney cannot recall the details of a specific aspect of the trial. His or her recollection of the facts is sometimes different than what is reflected in the trial transcripts. Oftentimes, the trial attorney’s viewpoint or recollection of facts favors the client. Since the attorney was personally involved in the case and wanted to win for the client, emotions can affect the attorney’s viewpoint. If you have ever heard the saying, “You hear what you want to hear and see what you want to see,” the speaker is letting you know that your perception is being influenced by your personal bias.
As an appeal lawyer, I have presented oral argument in the Court of Appeals many times. I have witnessed trial attorneys act as their clients’ appeal lawyers. It usually does not go well. It seems as if the trial attorney does not pay attention to the facts as recorded in the transcripts but instead relies on memory to present the facts. The judges always point out the factual errors.
The Court’s interpretation of the facts is based on an objective review of the record. The Court’s perspective is not clouded by personal involvement. The appeal lawyer must be on the “same page” as the judges. Specifically, the appeal lawyer must have an objective view of the case to accurately review the record and present the case to the Court of Appeals. For this reason, you should always hire new counsel to do the job of an appeal lawyer. Only then can you get a fair and honest assessment of the case and the strength of the issues.
A new lawyer should bring objectivity to the case. In essence, a fresh viewpoint. The trial attorney cannot give you the much needed second opinion. Moreover, the trial attorney had a personal interest in the case and that interest may cloud his or her critical assessment of the legal arguments in the appeal. When the trial attorney has been involved in preparing your trial defense for months or years, it will be very hard to be detached and neutral like a new appeal lawyer will certainly possess.
An appeal lawyer will bring a new perspective to the case. The new lawyer can objectively assess the strength and weaknesses of the case. Trial attorneys who pursue their own appeal may develop “tunnel vision.” Since he or she had personally conducted the trial, the attorney may have become biased if he or she is convinced of the strength of the case. The trial attorney may lose the objective viewpoint. For this reason, you will be better served by consulting with and hiring an objective and detached appeal lawyer to review the case.
For example, consider the following. When I write motion or appeals, I do take the time to carefully review and edit the legal briefs. I often review and edit the brief several times until I believe I have corrected all of the errors and made the necessary adjustments. I believe I am done. However, I know better. I spent so much time on the brief that I developed “tunnel vision.” After countless hours writing and editing a brief I may not be objective in the sense that the brief may need changes. But, in our office and other offices I worked at, we made it a policy to review each other’s work. As you can guess, the second set of eyes will catch a typographical error or two.
One more example. Have you ever driven past a house or store so many times that you believe you have seen it all only to have someone point something out that you never noticed. I can bet there are times when you said, “I looked at that a hundred times and never noticed that.”
A new appeal lawyer is the second set of eyes need to catch an error or something new. While your trial attorney’s viewpoint is very important, you do not want an argument overlooked that could be the difference between winning or losing your appeal. When so much is at stake, you cannot afford to have arguments missing from the brief. While your trial lawyer had prepared your defense to present to a jury, an appeal lawyer issue spots for purposes of presenting the case to the three Court of Appeals judges. Each requires a different approach.
Your Appeal May Involve an Argument that Your Trial Lawyer was Ineffective
This is probably the most important reason why you should not have your trial lawyer do your appeal. Your attorney may not raise an ineffective assistance of counsel claim against himself or herself. The attorney would have to admit he or she made a mistake. An Ineffective assistance of counsel issue is raised when a defendant argues that the trial attorney’s performance was objectively unreasonable and that error was so prejudicial it deprived the defendant a fair trial as guaranteed by the Sixth Amendment. If the record shows you may be entitled to a new trial based on the ineffective assistance of counsel, your trial counsel may not raise that issue on appeal to protect himself or herself.
The process for filing an ineffective assistance claim is complicated. The appeal lawyer has to file a motion in the trial court to request an evidentiary hearing. The appeal lawyer will cross-examine the trial attorney to determine why the attorney did or did not take certain actions in your case. How can that be done if your trial attorney is your appeal lawyer? In your appeal, you will be arguing that errors committed during your trial resulted in an unjust conviction. This could include errors committed by the trial attorney. Consider that even if your trial lawyer admits to the error, he or she cannot represent you on appeal with that argument. The Court of Appeals will not accept that admission because many defendants would easily get a new trial if the trial attorneys admitted to a mistake.
Because the trial attorney had been personally involved in the case, he or she may believe that an ineffective claim does not exist. Again, the subjective viewpoint has impacted his or her perception of the case. If you are entitled to a new trial because you did not receive the effective assistance of counsel, you must hire a new appeal lawyer to represent you and investigate that issue.
You should only hire an objective and skilled criminal appeal lawyer
If the appeal process has just begun, the appeal will be decided in the Michigan Court of Appeals by a panel of three experienced judges. One critical question to ask is, “Can my appeal lawyer anticipate how the panel of judges will look at the case?” Your appeal lawyer must be able to see the case from the Court’s perspective. A skilled appeal lawyer will possess this ability.
An appeal lawyer has worked to develop a unique set of skills to benefit the client
The skills used in an appeal are very different from those used at a trial. Since our office does both types of criminal defense, we have developed unique skills to benefit our trial and appeal clients. We, however, would not appeal our own trial cases. While a fresh perspective is necessary, that that is not the only thing required for a persuasive appeal.
An appeal attorney engages in specialized work. An appeal requires the use of creativity and skills much different from those needed at trial. A trial lawyer works to present the defense to people who are not lawyers, that is, the jury. Ultimately, the trial attorney’s primary role is to convince the jury that his or her client is not guilty of the crime/s.
The audience in an appeal is much different. So, the approach has to be different to reach that audience. Instead of persuading a group of non-lawyers, the appeal lawyer prepares to convince a panel of lawyers, that is, the 3 judge panel of the appeals court. Unlike a trial where facts are at issue, an appeal is based on an analysis of the law. Instead of the theater of the trial courtroom, the appeal is mostly argued in the silence of the appellate brief. While a trial involves days of witness presentation and “theatrics,” an appeal is fought in the briefs. So, the most important skill your appeal lawyer should possess is the power of the pen, that is, the written argument. While an appeal does have an oral argument component, that portion of the appeal is short. An oral argument usually lasts only 15 minutes for each side, unless the Court wants to extend that time.
Instead of arguing which facts are true or not as in a trial, the appeals court and the appeal lawyer must accept as true the facts contained in the transcript. While a trial attorney works to shape the fats to his or her client’s favor, the appeal lawyer must present the facts in a way that supports the legal arguments. Instead of arguing over the facts, the appeal lawyer argues over the legal errors.
Since the duties of a trial lawyer and appeal lawyer are different, the approach must be different. The Court of Appeals is uniquely different type of audience from that of a jury. Both audiences expect different presentations. In that sense, the Court of Appeals, or any appellate court for that matter, appreciates the appeal lawyer who can present a well written brief that accurately, concisely and persuasively presents the legal issues and arguments. The Court of Appeals will not be moved or swayed by the same passionate argument made by a trial lawyer to the jury. Instead, the Court is persuaded by the strength of arguments based on the precise analysis of the law.
You do not want your appeal lawyer to frustrate the Court of Appeals with the wrong method of presentation. As I stated earlier, trial attorneys sometimes repackage the legal points that he or she presented at trial. Those points are not the same type of arguments that will work in the appellate courts. It never works out well for the trial attorney. An appeal is not a second chance to try the case. A trial lawyer who uses the same points on appeal as presented at trial, has engaged in substandard appeal advocacy.
The trial lawyer cannot effectively transition to the role of appeal lawyer. If you ask your trial lawyer to do the appeal work, he or she should recognize the difficulty of that task. He or she should understand that several adjustments must be made.
Even if the trial lawyer can make the transition to appeal lawyer, you still do not want the trial lawyer to do your appeal. I have pointed out some of the dangers earlier in this article. Essentially, you do want an appeal lawyer who has developed and sharpened his or her appellate advocacy skills over time.
Even if your trial attorney has outstanding skills in the courtroom, those skills do not transition to the appeal. Appeals are based on appellate briefs that are well written, researched, and persuasively argued.
I am going to give you some insight here. Simply because you hire a huge law firm or “well-known” trial attorney does not mean that you are getting the best appeal lawyer money can buy. It does not mean that your money increases your chances at success. Your appeal is only as good as the work the lawyer produces. If you hire the trial lawyer to do the appeal, he or she may not possess the necessary skills needed for success. The legal briefs are based on the strength of your appeal lawyer’s skill set. A brief must be well written, researched and persuasively crafted to the Court of Appeals audience. If you pick the wrong lawyer, you risk lowering your chances of success.
I want to go back the so called “high powered” law firm discussion for a moment. The fact that you hire the large firm does not mean you will win. What if you hired someone who was a new attorney? Would you expect him or her to win a high stakes argument for a new trial in a first-degree murder case?
Nearly 15 years ago, I graduated from Wayne State University Law School. The school had fantastic professors especially Professor David Moran who taught criminal law and procedure. He is now a professor at the University of Michigan Law School and manages the Michigan Innocence Clinic. While in law school, I had taken the appellate practice clinic taught by an attorney from the State Appellate Defender’s Office. To further develop my skills I interned at the Federal Defender’s Office writing appeals. To get another perspective, I wrote appeals for the Wayne County Prosecutor’s Office for a year. I also participated in the law Moot Court program where we drafted appeals and made oral arguments in competition. The competitions were judged and graded by attorneys and judges. I eventually became the editor-in-chief for that program.
Near the end of my law school career I worked for an attorney in Detroit who specialized in appeals. He was an English professor and a great appellate attorney. He had argued twice in the United States Supreme Court. He was an outstanding mentor. He reviewed all of my briefs with a red pen. It took experience to reduce the amount of red marks he would make on my briefs. In my last year of law school I wrote all of his appeal briefs. All of them. When I graduated he let me take over his appeals and argue the cases in the Court of Appeals. I was dropped right into the fire without time to think I should be nervous or did not have the experience. But, I did have the skills.
In one of the very first appeals I did right out of law school for the Detroit law firm, I challenged a first-degree murder charge. On appeal, I argued that the trial attorneys violated the client’s Sixth Amendment right to the effective assistance of counsel. I requested an evidentiary hearing to prove this to the trial court. Specifically, I argued that the client’s trial counsel were ineffective by failing to use at trial two letters written by a co-defendant the second of which stated that the client had nothing to do with the killings. The trial lawyers did not use the letters to impeach the credibility of the person who wrote the letters. At trial, the “letter writer” testified as a witness. He told the jury my client committed the crimes.
I had to conduct the evidentiary hearing without much experience as a new lawyer. It got more complex because I had to cross-examine the trial attorneys. The two attorneys had 10-15 years more experience than I did. So, I had a first-degree murder appeal where I had to get the trial lawyers in a position to show that they made a mistake so prejudicial that it entitled my client to a new trial. During the evidentiary hearing, I cross-examined the trial lawyers. For several hours I attacked the manner in which they represented the client. In the end, the court granted the client a new trial.
So, as a new lawyer one would not have given me much chance to win that evidentiary hearing. But, through my law school career, I had worked and prepared to develop the skills necessary for that day. The client, his family, and the attorney I had worked for had confidence in me. I cite this example because it shows that the appeal attorney must develop the skills to engage in appellate work.
Here is the best way to choose an appeal attorney. Ask to read one of the appeal lawyer’s briefs. See if you would be persuaded by the arguments. At CZARNECKI & TAYLOR we are very proud of the work that we produce and we would be happy to send you a copy upon your request. Just use the contact form at the end of this article. Simply let us know who you are, and what type of criminal case you need appealed. Let us know why you need an appeal lawyer.
You may not be an appeal lawyer but you will quickly get a “feel” for the lawyer after you review his or her written work product. If you have a lawyer friend ask his or her opinion of the brief. Ask your choice for an opinion written by the Court of Appeals regarding the lawyer’s appeals.
I will provide you with a link to a published opinion by the Court of Appeals in one of our cases. The opinion addressed an issue that did not have clarification in Michigan. Since the case was published it can now be used as controlling authority on that issue. Published Court of Appeals Opinion from one of our cases
There is no question that an effective criminal appeal lawyer must have strong writing skills. Ask to see an appellate brief. Is the writing clear, concise, coherent and understandable? Most importantly, is the writing persuasive? If not, then you should continue your search for an appeal lawyer.
Please see these other articles about a sample of our appeal work:
The Appeal Lawyer Skill Set
Only an experienced and skilled appeal lawyer should handle your appeal. As has been discussed throughout this article, there are special skills involved in effective appellate representation. Experience and education as an appeal lawyer sharpens these skills. It does take talent and skill to read and summarize the transcripts, issue spot, research the case law, apply the law to the case, write effective briefs, and persuasively argue in the Court of Appeals or other appellate courts.
An appeal lawyer must stay current with changes in case law. The appeal lawyer who can understand and interpret the law and think of its actual application to real cases, has an advantage over the trial lawyer and occasional appeal lawyer.
An experienced and skilled appeal lawyer will know what arguments are effective in the appellate courts. He or she will know what issues are persuasive. Additionally, the appeal lawyer will craft the arguments in such a way that the arguments hold the attention of the Court. The Court of Appeals likes to see well written issue statements and arguments.
Also, a skilled appeal attorney knows that he or she should not present every conceivable argument to the Court. Only the strongest arguments must be discussed. The Court does not like a brief littered with dozens of issues. In that sense, a skilled appeal lawyer will possess the knowledge to know what issues should be eliminated or argued. An experienced appeal lawyer greatly increases your chance of success.
As this article shows there is a considerable difference between a trial attorney and appeal lawyer. Trial attorneys focus on the facts. An appeal lawyer, argues legal issues. Yes, trial attorneys can be good appeal lawyers and appeal lawyers can be good trial attorneys. It just depends on experience and training. But, you should not hire your trial lawyer to represent you in an appeal. The objectivity will be missing. You need a second set of eyes to review your case and give you an unbiased assessment of the issues.
You can browse the internet for an appeal lawyer and find many instances where the websites say that the attorney is tough, aggressive, experienced, etc. From a review of the many sites out there, it appears as if every lawyer is tough, experienced, aggressive and knowledgeable.
At CZARNECKI & TAYLOR we like to think we are skilled, educated and dedicated to our client’s success. We have developed our appeal skills because of our experience with appellate work.
Before you hire an appeal lawyer you should make an appointment to talk with him or her. Look at the written work whether it be a motion or appeal brief. In our article we have cited some of our victories in serious very serious cases. I provided a link to an opinion from the Court of Appeals on one of appeals.
The work of a criminal appeal lawyer is challenging. We invite that challenge.
You can contact us 24-7/365. We have weekend and evening availability.
We look forward to discussing your case with you. If you are calling on someone’s behalf we can assist you as well.
JAMES E. CZARNECKI II (586) 718-2345
GENEVIEVE L. TAYLOR (586) 350-6044