Any type of Federal litigation is challenging inasmuch as the atmosphere in a Federal Court is much different than what is ordinarily encountered in any State Court. Given the fact that the number of cases per judge is much lower in federal court than in any State Court, everyone involved sharpens their pencils and brings their “A-game”.
What we mean to say is, because the Court has fewer cases to deal with, it has the ability to become intimately familiar with each case they have and each appearance for conference or motion practice carries with it a burden of preparation not seen in State Court.
W've learned this lesson from a now retired senior Federal District Court Judge who, asked... “Do you know what the difference is between God and a Federal District Court Judge?” He paused, and then continued, “God doesn’t think He is a Federal District Court Judge.”
You should also know that, given our familiarity with the Federal sentencing guidelines and the very intricate proceedings surrounding the sentence imposed after trial, we've been brought into cases after a conviction just to argue the sentencing guidelines and dispute the probation report that is submitted by the Government. Different from the procedure in a State criminal action, the law and procedure surrounding a Federal sentence is very involved because it includes a hearing that invites a counter-submission by the accused. In other words, having the right lawyer prepare and argue a post-conviction sentencing memorandum could spare someone who has already been convicted, years of unwarranted incarceration.
On the civil end, we’ve handled removal proceedings, U.S.C 42 1983 and 1985 civil rights actions, breach of contract and other commercial actions.
Insofar as appeals go, we must admit, criminal appeals are our favorite.
There are two forms of post trial review that we consider under the appeal umbrella.
First is a straightforward appeal to the Circuit Court of Appeals;
The second is in the form of habeas corpus review.
With respect to habeas corpus, most, because they are not taken seriously by the attorney (or the Court, for that matter), end up with a two-line decision denying the relief, Habeas corpus asserts that for reasons ranging from ineffective assistance of counsel to prosecutorial misconduct; the detention of the accused is unlawful. Without getting too technical,habeas corpus usually involves issues that go to the fundamental fairness of a conviction leading to the illegal detention (incarceration) of the Defendant. In other words, the trial was fundamentally flawed and the Defendant is wrongfully being jailed.
On the other hand, “a direct appeal” usually argues errors committed by the trial Court. The most common errors are mis-joinder or offenses, blatant evidentiary errors, errors by the Court insofar as pre-trial motions and the Granddaddy of ‘em all, a bad jury charge.
We know this will disappoint most of you but, on average, it is rare that a trial contains sufficient defects to warrant reversal. The point is, while you may have gotten the screws, in order to reverse a conviction, several standards of review intersect with each other.
The best way to describe it is, you need a diagnosis and a prognosis. What we mean to say... Is the trial flawed and, if so, is there enough to warrant a reversal? In our experience, the only way to get the truth is a fresh set of eyes, meaning someone like us who will review the transcript and speak to trial counsel so we can find out where the bones are buried. In other words, provide the context necessary to write a persuasive brief that has the proper legal foundation to succeed.
What we're getting at is, before you sink $50,000.00 on an appeal, first find out if you have a “snowball’s chance” to win. Taking an appeal, and having it done right, is a costly and arduous proposition. Moreover, for the person convicted, it is beyond disappointing to put faith in a pointless appeal only to have it “denied without opinion”. In pursuing an appeal, there is a lot to consider and I only take cases that have merit and a chance of success.
One last caveat insofar as appeals go. Be careful to avoid a trial lawyer who is suffering from what I call “trial attorney dementia”.
“Trial attorney dementia” is a condition that exists when the attorney who litigated a case wants to do the appeal. Having taken so many cases to trial, I know this phenomenon first-hand. The symptoms include a complete lack of objectivity, too much passion, emotional connection to the Defendant and his or her family and the circumstances surrounding the conviction.
In a nutshell, sometimes, the last person you want preparing an appeal is the lawyer who went to trial. Trust us on this one.