February 08, 2016 Practice Points

A 10-Point Checklist for the Criminal Appeal

Tips to get the most out of the appellate process.

By Kele Onyejekwe – February 8, 2016

1. Talk to your client. Does your client really want this appeal? The conviction may be reversed, affirmed, or remanded for a new trial. A new trial resets matters, but depending on the reason for a remand, a new trial could result in a better plea offer or a dismissal.

2. If you did not try the case, talk to the trial lawyer as soon as possible. You can get what happened at the trial from your colleague while it is still fresh.

3. File a timely notice of appeal. See Lawrence A. Kasten, “Time Limits for Filing a Notice of Appeal Are Mandatory and Jurisdictional—Really,” 30 App. Prac. 1 (Fall 2010).

4. Review the trial court’s docket entries and all records. Review the trial transcripts, noting preserved errors, to identify your strongest arguments. See Lara O’Donnell & Sonia O’Donnell, “Criminal Appeals for the Mostly Civil Lawyer,” 33 App. Prac. 3 (Summer 2014).

5. Write the opening brief. It should convey not just why the trial court erred but why the conviction must be vacated. Go with your gut in explaining your views. You do not have to argue every issue. See Cerbo v. Fauver, 616 F.2d 714, 718 (3d Cir.1980) (“counsel need not appeal every possible question of law”). But you do not have to limit the issues to only a few. See Paul Mogin, “Raising Issues on Appeal: Fewer Is Not Always Better,” 34 App. Prac. 2 (Fall 2014). The brief does not have to be short. Empirical studies show that longer briefs directly correlate with appellants’ success. Gregory C. Sisk & Michael Heise, “‘Too Many Notes’? An Empirical Study of Advocacy in Federal Courts,” 12 J. Empirical Legal Stud. 578, 580 (2015) (“Brief length proved powerfully significant in our study and with substantial effect—for appellants.”). You may have heard that we should write short sentences. This also lacks an empirical basis. See generally Michael Heise, “Federal Criminal Appeals: A Brief Empirical Perspective,” 93 Marq. L. Rev. 825 (2009) (empirical research generally lacking in criminal appeals). Shorter sentences and other indices of readability simply do not improve a brief’s success. Lance Long & William F. Christensen, “Does the Readability of Your Brief Affect Your Chances of Winning on Appeal?” 12 J. App. Prac. & Process 145, 146 (2011).

6. Review the opposition brief thoroughly. If the government does not file a brief in opposition or has failed to adequately respond to your brief and the trial court’s error remains obvious, file a motion for summary reversal. Though such motions are rarely granted, you should file it if the circumstances warrant.

7. Write a reply brief responsive to the opposition brief. It is your last word. See Sylvia H. Walbolt & Nick A. Brown, “The Reply Brief: Turning ‘Getting the Last Word’ into ‘Getting the Win’,” 35 App. Prac. 2 (Fall 2015).

8. Appear for oral argument. The utility of oral argument is in serious doubt. In courts that depend heavily on law clerks’ bench memos, despite appearances, you are often arguing against a memo, not your opponent. Support is tepid. See, e.g., Joseph W. Hatchett & Robert J. Telfer III, “The Importance of Appellate Oral Argument,” 33 Stetson L. Rev. 139, 140 (2003) (“Not only has oral argument become less common, but the time allotted for oral argument has decreased.”). Waiving oral argument in many cases will hardly hurt your client.

9. Review the court’s opinion. Was the conviction affirmed? File a petition for rehearing if the court has overlooked or misunderstood an issue. Courts hardly ever grant petitions for rehearing. See Richard S. Arnold, “Why Judges Don’t Like Petitions for Rehearing,” 3 J. App. Prac. & Process 29 (2001). It is still your obligation to file a petition in the case of an incorrect decision that affects your client’s rights.

10. Communicate the court’s decision promptly to your client. If the conviction is affirmed, tell your client and explain the next steps. There is a model letter by the U.S. Court of Appeals for the District of Columbia Circuit for practitioners under the Criminal Justice Act program.

Keywords: criminal litigation, appeals, brief writing, oral argument, appellate procedure


Kele Onyejekwe is with the Office of the Territorial Public Defender in St. Thomas, Virgin Islands.

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