APPELLATE ADVOCACY

APPELLATE ADVOCACY

Legal representation by an attorney before any state or federal court of intermediate or final appeal.

The U.S. COURTS OF APPEALS were created by the Evarts Act of 1891 (28 U.S.C.A. § 43) and are divided into 13 judicial circuits. The central loca-
tion of each court is determined by statute (28
U.S.C.A. § 41 [1995]). In addition, a court may
sit any place within its circuit, and is required by
statute to sit in certain locations other than its
central location (28 U.S.C.A. § 44 [1995]).
Appeals are heard and decided by panels of three
judges that are selected randomly, by the circuit
court en banc (in its entirety), or by a division
established to perform the court’s en banc func-
tion in larger circuits.

The circuit courts’ original jurisdiction
included all matters not exclusively reserved for
the district trial courts. The circuit courts also
had appellate jurisdiction to review district trial
court decisions in civil cases in which the
amount in controversy exceeded $50 and in
ADMIRALTY cases in which the amount in contro-
versy exceeded $300. They have jurisdiction to
review final decisions of the federal district trial
courts, both civil and criminal. Their jurisdic-
tion extends only to matters authorized by Con-
gress. An appellate court has no discretion in
deciding whether to consider the merits of an
appeal over which it has no jurisdiction. The
most common basis for appellate jurisdiction is
an appeal from a final district court judgment
(324 U.S. 229, 28 U.S.C.A. § 1291 [1995]).When
a judgment is entered that “ends the litigation on
the merits and leaves nothing for the court to do
but execute the judgment,” a case is completed
(Catlin v. United States, 65 S. Ct. 631 [1945]).
Congress has progressively limited the Supreme Court’s power to directly review trial court decisions without a hearing in the courts
of appeals. Because Supreme Court review is
usually discretionary in the overwhelming
majority of cases, a court of appeals is the highest
federal tribunal where a litigant or defendant
can receive a hearing on the merits.

The Appeals Process
An unsuccessful party in a lawsuit or administrative
proceeding may file a timely appeal to
an appropriate superior court empowered to
review a final decision, on the ground that it was
based upon an erroneous application of law. The
person who initiates the appeal, called the appellant,
must file a notice of appeal, along with
other necessary documents, to commence
appellate review. The person against whom the
appeal is brought, the appellee, then files a brief
in response to the appellant’s allegations.
Usually, review in the federal and state
courts goes through two stages: an appeal from
a trial court to an intermediate appellate court,
and then to the highest appellate court in the
jurisdiction. An appeal may be granted as a matter
of right or as a matter of certiorari (at the
discretion of a superior appellate court). For
example, a party may appeal from a federal district
trial court to a U.S. court of appeals as a
matter of right, but may appeal to the U.S.
Supreme Court only by a grant of certiorari. An
appellate court may hear an appeal only if the
decision presented meets the statutory requirements
for review.

The right to appeal is limited to the parties
to the proceedings who are aggrieved by the
decision because it has a direct and adverse
effect upon them or their property. Also, an
actual case or controversy must exist at the time
of review. Issues that have become moot while
the appeal is pending and cases that have been
settled are not reviewable.

For a case to be appealable, a final judgment
or order must have been reached by a trial court.
A judgment is considered final for purposes of
appeal when the action is ended in the court
where it was brought and nothing more is to be
decided.

An appeal must be made within the time
prescribed by statute or by the rules governing
the appellate court. The time for filing an appeal
begins to run once a final decision has been
made by the trial court. The appellant must file
a notice of appeal with the clerk of the appellate
court in order to begin the appeal, and send a
copy to the appellee. If the appeal process is not
begun within the time set by statute, any right to
appeal is lost. If extenuating circumstances exist,
an extension of time for filing the appeal may be
granted.

The appellate court can review only the trial
court record and the briefs filed by the appellant
and appellee. If permitted by the appellate court,
AMICUS CURIAE briefs may also become part of
the record on appeal. (Amicus curiae means
“friend of the court.”A person who is not a party
to the action may petition the court for permission
to file such a brief.) The briefs must contain
the facts of the case, the grounds for review, and
arguments relating to the issues raised.
The appellant’s brief must specifically discuss
the alleged errors that entitle the appellant
to a reversal of the trial court’s decision and discuss
why each ruling was wrong, citing authority
such as a case or statute that applies to the
particular point at issue. The appellee may file a
brief containing arguments against reversal, discussing
why the trial court’s ruling was correct.
Only conclusions of law, not findings of fact,
made by a lower court are reviewable. Appellate
courts can decide only issues actually before
them on appeal.

The appellate court must decide whether the
errors alleged to have been made by the trial
court are harmless or prejudicial. If an error
substantially injures the rights of the appellant,
it is called a prejudicial error, or reversible error,
and warrants the reversal of the final judgment
or order. If the appeals court determines that the
error is technical or minimally affects the rights
of the parties or the outcome of the lawsuit, it is
considered a HARMLESS ERROR and insufficient
to require a reversal or modification of the decision
of the trial court.

The appellate court may hear oral arguments
from each side. These arguments, which
usually last 10 to 15 minutes for each side, are
intended to help the court understand the issues
and to persuade the court to rule in favor of the
arguing party. During the arguments, the appellate
judge or judges may interrupt with questions
on particular issues or points of law.
After reviewing the appeal, the appellate
court may affirm the decision of the lower court,
modify it, reverse it, or remand the case for a
new trial in the lower court.When a decision is
affirmed, the appellate court accepts the decision
of the lower court and rejects the appellant’s
contention that the decision was erroneous.
When the appellate court modifies the lower court’s decision, it accepts part of the trial
court’s decision and determines that the appellant
was partly correct in saying that the decision
was erroneous. The trial court’s decision is
then modified accordingly. In reversing a decision,
the appellate court indicates that it agrees
with the appellant that the lower court’s decision
was erroneous. The party who lost the case at
the trial court level then becomes the winning
party in appellate court. Occasionally, a decision
will be reversed but the lawsuit is still unresolved.
Then, the appellate court orders that the
case be remanded (returned) to the lower court
for the determination of issues that remain
unresolved.

Federal Criminal Appellate Advocacy
The SIXTH AMENDMENT to the U.S. Constitution
guarantees a criminal defendant the right
to a jury trial and the right to an attorney. The
FOURTEENTH AMENDMENT says states must provide
criminal defendants with these same guarantees.
The U.S. Supreme Court has repeatedly
held that a person found guilty in a criminal
proceeding has no constitutional right to appeal.
A federal criminal defendant’s right to appeal,
therefore, is based on an act of Congress.
Prior to the nation’s founding, many colonial
legislatures allowed, by special act, new trials
of criminal defendants. But generally,
criminal appeals did not exist when the U.S.
Constitution was drafted, and the JUDICIARY
ACT OF 1789 (ch. 20, 1 Stat. 73) did not provide
for appellate review of criminal cases. Thus, history
does not support a constitutional right to
criminal appeal. The issue was left to Congress.
Between 1855 and 1860, Congress refused to
provide for federal criminal appellate jurisdiction,
although several bills were introduced.
Finally, in 1879, Congress authorized the federal
circuit courts to issue writs of error in criminal
cases on a discretionary basis. In 1889, Congress
gave defendants sentenced to death the right of
direct appeal to the U.S. Supreme Court. In
1891, it extended the Supreme Court’s jurisdiction
for review to all “cases of conviction of a
capital or otherwise infamous crime” (26 Stat.
827, quoted in 775 S. Ct. 1332 [1957]). Because
of the burden on the Supreme Court of hearing
a large number of criminal appeals, in 1897,
Congress transferred jurisdiction over noncapital
appeals to the circuit courts of appeals. In
1911, Congress abolished the right of direct
appeal to the Supreme Court in capital cases,
and the circuit courts became the appellate
courts for all criminal cases.

In 1894, in McKane v. Durston, 153 U.S. 684,
14 S. Ct. 913, 38 L. Ed. 867, a unanimous
Supreme Court determined that no matter how
serious the offense, a criminal defendant had no
constitutional right to appeal her or his conviction.
The Criminal Justice Act (18 U.S.C.A. §
3006A [1995]) is an outgrowth of the Sixth
Amendment RIGHT TO COUNSEL. The act
requires courts to develop and implement plans
to furnish representation for defendants charged
with felonies or misdemeanors, other than petty
offenses, who are financially unable to obtain an
attorney. Although the act is directed primarily
to proceedings at the trial court level, it provides
that any person for whom counsel is appointed
shall be represented at every stage of the criminal
proceedings, from the defendant’s initial
appearance through the appeal process.

State Criminal Appellate Advocacy
All 50 states provide defendants some form
of appeal from a criminal conviction. Appeals
were well-established elements of state criminal
proceedings throughout the nineteenth century.
They probably developed earlier in state court
systems because state governments had primary
responsibility for enforcing criminal laws from
the founding of the nation through the 1800s,
since very few federal statutory offenses existed
during this period.
Because states decided that criminal appeals
were necessary to protect the innocent, the
Supreme Court determined that appellate procedures
must comply with the federal constitutional
guarantees of DUE PROCESS and EQUAL
PROTECTION (Griffin v. Illinois, 351 U.S. 12, 76 S.
Ct. 585, 100 L. Ed. 891 [1956]). In Douglas v.
California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d
811 (1963), the Supreme Court held that a state
violates a defendant’s constitutional protections
when it forces an indigent, who has a statutory
right to appeal, to attempt the appeal without
the assistance of an attorney. The Supreme
Court reasoned that without an attorney, an
appeal constituted nothing more than a “meaningless
ritual.” Therefore, a state must provide
counsel to a defendant who wants to exercise the
right to appeal but cannot afford to hire a
lawyer.
In 1985, the Supreme Court held that a
defendant has the right to the effective assistance of appellate counsel. The Court concluded that a defendant whose counsel does not provide effective
representation is “in no better position than
one who has no counsel at all” (Evitts v. Lucey,
469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821
[1985]). However, in Ross v. Moffitt, 417 U.S.
600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974), the
Supreme Court held that a criminal defendant
does not have a constitutional right to
appointed counsel on a discretionary review.
In Roe v. Flores-Ortega , 528 U.S. 470, 120
S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Court
considered whether a defense lawyer must
always consult with a defendant regarding an
appeal of the conviction. In this case, the defendant
(Flores-Ortega) alleged ineffective counsel
because his attorney did not file an appeal
within the 60-day time period dictated by the
judge in his original case. The Court rejected a
bright-line rule (a strict rule with no ability to
use discretion) that would have mandated such
a consultation, ruling that each case must be
analyzed using a set of standards.
The Court in Roe held that a defendant
claiming ineffective assistance of counsel must
show that the attorney’s representation “fell
below an objective standard of reasonableness”
and that the attorney’s deficient performance
prejudiced the defendant. The Court used a test
set out in Strickland v.Washington, 466 U.S. 668,
104 S.Ct. 205, 80 L.Ed.2d 674 (1984), to determine
if Flores-Ortega’s attorney was constitutionally
ineffective for failing to file a notice of
appeal. It directed that an inquiry should begin
by asking whether the attorney in fact consulted
with the defendant about the appeal. Such a
consultation meant advising the defendant on
the pros and cons of taking an appeal and making
a reasonable effort to discover the defendant’s
wishes. However, the defendant would
still have to show that there was a reasonable
probability that, but for his attorney’s conduct,
he would have filed a timely appeal.
In Glover v. United States, 531 U.S. 198, 121
S.Ct. 696, 148 L.Ed.2d 604 (2001), the Supreme
Court ruled that defendants are entitled to a
hearing to prove that they received ineffective
counsel on an appeal. In this case, the defendant
argued that his appellate attorney failed to
appeal his sentence, which he claimed had been
miscalculated under federal sentencing guidelines.
This failure would mean serving between
six and 21 months longer in prison. An appeals
court held that the increase in his sentence was
not serious enough to merit a review of his ineffective
counsel claim. The Supreme Court disagreed,
ruling that any amount of jail time
justified a hearing into the issue.
The Supreme Court considered another
claim of ineffective appellate counsel in Mickens
v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152
L.Ed.2d 291 (2002), but this one involved trial
counsel. However, the rule announced in Mickens,
could be made applicable to claims of ineffective
appellate counsel. The defendant had
been convicted of murder and sentenced to
death. During the course of his death penalty
appeals his appellate attorney discovered that
the defendant’s trial attorney had represented
the murder victim shortly before his murder.
This was not disclosed to the defendant during
his trial. The defendant argued that this tainted
his trial, as there was no way the defense attorney
could have been objective.
The Supreme Court disagreed, in a decision
that signaled a departure from its death penalty
JURISPRUDENCE. Because of the finality of a
death sentence, the Court previously required
less hard evidence of prejudice from ineffective
counsel. In Mickens, the Court stated that the
general rule for ineffective counsel should also
be applied to capital murder cases. Under this
standard the defendant must show that “but for”
the lawyer’s conduct, the result of the trial would
have been different. The Court will presume an
adverse effect “where assistance of counsel has
been denied entirely or during a critical stage of
the proceeding.” In Mickens, however, the Court
found that the trial attorney had done an acceptable
job in representing the defendant, so no
adverse effect could be presumed. Because the
defendant could not show that the outcome of
his trial would have been any different but for
the actions of his attorney, his appeal was
rejected.

FURTHER READINGS
Arkin, Marc M. 1992. “Rethinking the Constitutional Right
to a Criminal Appeal.” University of California at Los
Angeles Law Review 39.
—. 1990. “Speedy Criminal Appeal: A Right without a
Remedy.”Minnesota Law Review 74.
Beazley, Mary Beth. 2002. A Practical Guide to Appellate
Advocacy. New York: Aspen Publishers.
Frederick, David C. 2002. Supreme Court and Appellate
Advocacy. St. Paul,Minn.:West Group.
Junkin, Federick D. 1988. “The Right to Counsel in ‘Frivolous’
Criminal Appeals: A Reevaluation of the Guarantees
of Anders v. California.” Texas Law Review 67.
Knibb, David G. 1990. Federal Court of Appeals Manual. 2d
ed. St. Paul,Minn.:West.
Rubin, Alvin B. 1989. Advocacy in the Court of Appeal. American
Law Institute–American Bar Association (ALIABA).
No. C380.

CROSS-REFERENCES
Criminal Law; Federal Courts; Supreme Court of the United
States.