The "Direct Appeal" Process. Appellate Briefs:

Jan. 26, 2022

Last month, the "direct appeal" process was defined and briefly - no pun intended - explained. In this entry, we will now focus on "direct appeal briefs."

At this level, your appellate attorney should first dissect your entire case to find any and all errors made by the judge or the prosecutor (from start to finish). Those errors must then be artfully explained in your “Appellant’s Brief” wherein your lawyer presents separately numbered arguments (called "Issues" or "Points"). Each argument should begin with a short sentence or paragraph identifying the premise, i.e., "Appellant Jones was denied a fair trial when the trial court refused his evidence that the prosecution's main witness has been using drugs for over ten years." The initial premise must often be followed by two procedural statements, one being about the "standard of review" employed by the appellate court for that type of claim, and the other being a directive to the place in the trial record where the argument was raised by the client's previous attorney. (For example, a standard of review might posit that "This Court should review the trial judge's refusal to allow cross-examination for 'abuse of discretion.' " And, the record-reference might read, "This argument was first asserted on the third day of trial and can be found at page 279 of the Trial Transcript.") Once the initial premise, the standard of review, and the record-reference are penned, then it is time for the actual argument, which should be written concisely. First, the Court should be presented with a short but descriptive summary of those facts relevant to the premise. Then the legal argument, itself, follows. The argument features a combination of persuasive and rational propositions, each supported by citation to prior appellate decisions where previous courts have ruled in the manner being advocated by your lawyer.

There are no shortcuts to effective legal writing. Appellate advocacy like this is an art. And, it takes an inordinate amount of time, and many editing sessions, to hone the brief into the best written work product espousing your position, arguing for your freedom!

Your appellate advocate must lodge legal arguments to convince the Court of Appeals (a panel of three judges) to send the case back to the trial level for a new trial, or in some cases, a lower sentence. If the first appeal is unsuccessful, then your lawyer should press forward to convince the State Supreme Court, or in Federal cases, the United States Supreme Court, to accept transfer for another review.

At any point in the “direct appeal” process, if a panel of judges rules in your favor, the case is transferred back to the trial court for a new trial or new sentencing. However, if you do not prevail in the “direct appeal” phase, your case is far from over. The next level up on the pyramid is called “post-conviction,” and will feature in our next entry.

In the meantime, when seeking an appellate or post-conviction attorney, do not be afraid to ask for a few writing samples. Take time to read the writing style used by your lawyer. Choose the lawyer whose writing seems to best reflect what you want to communicated about your case. After all, he or she will be your voice on paper and in the courtroom!

Jonathan Laurans wants you to be educated as to what you may be facing. If you or a loved one has been convicted of a crime in Arizona, or in any federal court, contact him immediately. Visit his website at www.azpostconviction.com and then call him at (833) 421-5200 for a FREE initial legal consultation.