WHY APPELLATE COUNSEL?
There are important differences between trial counsel and appellate counsel.
What is an appeal?
If you received a final judgment or order in a case and you are unhappy with the result, you may be able to appeal the court’s decision to a higher court. In Colorado, County Court decisions are appealed to the District Court, and most appeals from the District Court are filed first with the Colorado Court of Appeals, although the Colorado Supreme Court has original jurisdiction in certain cases. For judgments rendered in the federal District Court of Colorado, an appeal would typically be filed in the 10th Circuit Court of Appeals.
Why Do You Need An Appellate Attorney?
It is an oversimplification, but the main difference between trial attorneys and appellate attorneys comes down to facts and the law. Juries (and in some cases a judge) decide facts, and judges decide the law. Trial attorneys are skilled in influencing a fact-finder to decide facts, and appellate attorneys are skilled in influencing judges to decide the law.
Trial attorneys present factual evidence and testimony to the fact-finder, and the fact-finder decides questions such as:
How much money is plaintiff entitled to for the damages he or she incurred?
Was the defendant driving recklessly?
Which witness is telling the truth?
Generally, with rare exceptions, appellate judges cannot reconsider these questions. Instead, they defer to the jury/trial judge’s determinations of fact. Appellate judges can, however, determine questions like:
How should the statute be interpreted?
Is the contract ambiguous?
Did the defendant receive constitutionally mandated due process?
These types of questions are legal in nature and can be reviewed on appeal.
An appellate attorney’s arguments are presented primarily in the form of written briefs. These briefs involve extensive legal research and writing at an extremely high level. The arguments made in an appellate brief are often philosophical in nature, and the audience is a panel of sophisticated and learned judges rather than a jury of peers. Appellate practitioners spend numerous hours researching the applicable law so that the best possible arguments can be crafted, fine-tuned, and presented to the court.
Appellate attorneys must understand the procedural requirements of the appellate courts, and the unique standards of review with which the appellate courts decide cases. Appellate attorneys have strategies in place for how to best present a case to the appellate courts, derived from the appellate attorney’s experience with the courts.
Appellate attorneys provide a fresh perspective. Their typical lack of involvement in the trial court allows them to have an objective view of the case and to better analyze any potential legal errors that occurred.
Appellate attorneys tend to be generalists. The legal questions involved in most appellate cases are narrow and nuanced. Given the vast and quickly-changing nature of the law, no attorney can be versed on all potential issues that can arise on appeal. Yet, an appellate attorney must have enough of a general understanding of various areas of the law to be able to identify issues for appeal. A good appellate attorney begins as a seasoned lawyer with a diverse background.
Paige Mackey Murray has been an attorney in Colorado since 1998, and she has practiced in many areas of the law. Paige's background was initially in writing and philosophy, providing a solid foundation for this type of practice. She clerked for three years on the Colorado Court of Appeals and one year on the Colorado Supreme Court, so she has a unique perspective on the practice before these tribunals.
When do you need an appellate attorney?
Appellate attorneys are typically consulted after a final judgment has been issued in a case, or if an appeal has been filed by an opposing party. However, an appellate attorney can be consulted early in a case to assist a trial attorney in preserving potential issues for appeal. Furthermore, there may be instances where an interlocutory appeal (an appeal filed before a final opinion is rendered) is appropriate.
It is important to consult an appellate attorney quickly to ensure that you meet any relevant filing deadlines.
Paige Mackey Murray
1434 Spruce Street, Suite 100
Boulder, Colorado 80302