What to Look For in a Second Circuit Appeals Attorney

Because we have a heavy appellate representation practice both in federal and state court we are often consulted about Second Circuit appeals, as well as appeals in other circuits and in New York State Appellate courts. Potential clients often have similar questions regarding the appellate process so I thought it might be useful to provide an overview, focusing for these purposes on Second Circuit criminal appeals.

What cases does the Second Circuit Court of Appeals handle?

Like all federal circuit courts of appeal, the Second Circuit generally handles appeals from "final orders." This means, broadly speaking, that in criminal cases the court will usually not hear so-called "interlocutory appeals," i.e., the court won't consider appeals from non-final orders such as rulings denying pre-trial motions or adverse evidentiary rulings made before or during trial. The court will, however, consider appeals from orders denying bail, since bail orders are considered "final orders." Additionally, the court will hear an appeal from an order denying a motion to dismiss an indictment on double jeopardy grounds, since refusing to do so could result in the very harm the double jeopardy bar seeks to avoid, i.e., a second trial.

Most frequently, however, we are consulted about appeals from a final judgment of conviction and sentence, and the federal courts of appeal do have jurisdiction to hear such appeals.

How does an appeal from a judgment of conviction and sentence proceed?

A defendant who has been convicted and sentenced has 14 days to file a notice of appeal - which is simply a one-page document telling the court of appeals that an appeal is being taken. Once the notice is filed and certain forms are submitted the person taking the appeal (the "appellant") can tell the court how much time they want to file their initial written argument on appeal (the "appellate brief"), up to three months. Once the brief is filed the government can request a similar amount of time to file its "brief in opposition," which is followed by appellant's "reply brief." Once the briefing has been completed, the court will set the case down for oral argument before a panel of three judges. The Second Circuit will typically permit argument in all criminal appeals, although not all circuit courts of appeal entertain oral argument.

Once the case is argued before a three-judge panel, the panel will write its opinion. This can take anywhere from a few days to several months. If the court issues a decision that upholds the conviction and sentence, at least in part, the appellant can move for rehearing, but this is rarely granted in the Second Circuit. The last stop on the appellate train is a petition for a writ of certiorari to the United States Supreme Court, but the Supreme Court grants review in only a very small percentage of cases in which review is sought.

How does a good appellate lawyer approach a brief in the Second Circuit?

How an appellate lawyer approaches a case on appeal depends, firstly, on the procedural posture of the case. If the client is seeking to appeal after pleading guilty, our post-conviction representation team must first consider whether the client has waived their appellate rights, which is typical when the client pleaded guilty pursuant to a plea agreement with the government. The typical plea waiver is written quite broadly and may preclude an appeal entirely. But there are exceptions.

If the client is appealing following a trial conviction then appellate counsel can raise any issue that appears in the record. However, if counsel seeks to raise an issue that was not addressed at trial the Second Circuit will apply a less forgiving "plain error" standard, which permits relief only in exceptional cases.

Under any circumstances, counsel will review the entire record from the lower court - all pretrial and trial proceedings, as well as the sentencing proceedings, looking for appealable issues. The sad fact is that the Second Circuit grants relief in only a small number of the cases it hears. Thus when an appeal is presented it moves along what many experienced appellate lawyers might consider a "conveyor belt" on its way to an order upholding -- "affirming" -- the conviction and sentence. Appellate counsel's job, therefore, is to give the court a good reason to take the case off the conveyor belt, give it serious consideration and, hopefully, grant relief.

Although in a perfect world appeals would be decided purely on their merit, in practice this is not always so. Judges often form opinions about whether they "want" the appellant to win or lose and then figure out a way to accomplish this goal. And because the courts of appeal have numerous judges (the Second Circuit has a total of 27, "active" and "senior"), but only three judges will hear your appeal, your chances of success also turn to a large extent on which judges will be randomly selected to be on your appellate panel. Get three judges who rarely vote to reverse and your chances of success are slim-to-none. Or get three judges that are more willing to rule against the government and your odds go up considerably.

When writing the appellate brief, counsel needs to carefully consider which issues to raise. Sometimes several issues present themselves but counsel will need to consider whether to present weaker issues along with stronger ones -- which may detract from the attention the stronger ones will receive. Or counsel may weigh more heavily issues that would result in a complete reversal of conviction rather than winning a reversal of just one of many counts of conviction -- what may amount to a pyrrhic victory at best.

But no matter what decisions are made regarding which issues to raise, counsel needs to always keep in mind the necessity of not making only legal arguments, but rather also emphasizing facts that will make the client as sympathetic as possible to the judges who will consider the appeal - so they want to grant relief. Additionally, good appellate counsel understands the importance of writing succinctly -- you are much more likely to get the court's attention if you present an argument clearly and without over-complicating issues. In good brief writing less is often more.

What should I look for in appellate counsel?

There are lots of "smart" lawyers out there but not all of them are effective appellate advocates. Experience matters. For one thing appellate counsel will need to identify potential issues, which may or may not be apparent from the cold record on appeal - some issues "jump out" whereas others are not so obvious. Miss an issue and you may lose an appeal that could otherwise have succeeded.

Good appellate counsel will also know the court they are writing to and - when the three-judge panel is announced shortly before oral argument - the judges before whom they will be presenting argument. Knowing the three judges on your panel, for example, may dictate the issues you will emphasize at oral argument - at which you will only have about 10-15 minutes to make your case.

I have often told young lawyers that the best training to become a trial lawyer is to have experience as an appellate lawyer, and vice-versa. That's because appellate experience provides federal criminal defense trial lawyers a broad understanding of the legal issues that trial counsel needs to internalize to effectively represent a client and to assure that all possible errors are identified and "preserved" for appellate review. And trial experience helps appellate counsel understand how things "really" work at trial and what issues appellate judges - many of whom started out as trial level judges - find most important.

Conclusion

In some ways appellate counsel are like legal oncologists - we enter the case only after the tumor has metastasized. Effective appellate advocacy requires a lawyer who understands not only the law but the judges to whom they will be writing, and who has the ability to present issues clearly and succinctly, always remembering that the initial goal must be to take the case off the proverbial "conveyor belt.

We've been appellate advocates for more than 40 years in numerous appellate courts throughout the country. We lecture widely on appellate law issues and publish the 1800-page Second Circuit Criminal Law Sourcebook. If you are contemplating an appeal give us a call. We'd be happy to discuss your appeal and answer your questions.

Richard Levitt

Levitt & Kaizer

(212) 480-4000