The Role of a California Appeals Attorney

If you're looking to appeal a California criminal conviction, that means you didn't get the result you were seeking from the trial court.

Now, the appeals court is your one, last and only remaining hope for getting the conviction or the sentence reversed.

A successful appeal hinges on two factors: (1) having good "appealable issues" and (2) getting a skilled, savvy and dedicated California criminal appeals lawyer on your side.1 That's where we come in.

As a law firm comprised of former prosecutors and police investigators, we know how the other side thinks, the types of mistakes that they routinely make, and how to challenge the types of arguments they present.

In this article, we explain how an appeals attorney handles a case from start to finish by addressing the following:

1. The Consultation and Investigation

1.1. Why your attorney's background is important

2. Preparing the Case for Appeal
3. Presenting the Case for Appeal

3.1. The appellant's opening brief

3.2. Oral argument

4. After the Appeals Court
Renders Its Decision

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. The Consultation and Investigation

You've decided to pursue an appeal. So you contact a California criminal appeals attorney.  At your initial consultation, you explain why you believe you were unfairly convicted and/or sentenced.  You explain what happened in the trial court and why you believe you have a strong case.

At this point, the attorney should not only be listening attentively, but should also be asking questions.  If the appellate attorney isn't asking questions, it's a sign that he/she either

  1. isn't going to give your case the attention it deserves, or
  2. doesn't believe you have legitimate grounds for appealing a California conviction.

The first possibility is a definite red-flag.  You certainly don't want an appeals attorney who isn't going to devote a great deal of time, attention and care to your case. Appeals are always uphill battles. If your attorney isn't ready to charge up that hill, your chances of success are very low.

As for the second possibility, it is probably (though not necessarily) too premature for the attorney to make that determination.  A skilled California appellate lawyer knows the types of issues that are ripe for appeal.  This means that even though you believe you have a valid appeal, an appeals lawyer may not.

However, an appeals lawyer is in a position to investigate your case to determine if there are legal issues that could be successful on appeal.even if they're not necessarily the issues you believed were important.

Example: Martha consults with an appeals attorney following her husband's conviction. She says that she would like to appeal the case on the basis that her husband is African American, but there were no African Americans on the jury.

The attorney listens to Martha, and investigates the case. He finds that appealing on the basis of race and discrimination is unlikely to be successful. However, he finds that the judge failed to give one of the necessary jury instructions. He appeals on that basis. The appellate court finds that the judge's mistake was reversible error, and remands the case for a whole new trial. This time, Martha's husband is acquitted.

Take cues from the attorney as to whether or not he/she appears to be interested in your case.  It takes a motivated, aggressive lawyer to scour through the trial court record to locate the latent (and oftentimes very subtle) issues that make for a successful appeal.

1.1. Why your attorney's background is important

You wouldn't go to a family doctor to have a tumor removed from your brain. By the same token, you shouldn't go to a general practitioner to handle your criminal appeal. You want someone with specialty not only in criminal law, but in California criminal appeals specifically.

Appeals are not the same as trials.  In fact, they are VERY different.  They involve different rules, different strategies, and different courts.

As California appeals lawyer John Murray1 explains, "A California appellate lawyer knows how to scrutinize the proceedings that took place in the trial court to determine if there were any legal errors that should be corrected on appeal.  A lawyer doesn't evaluate the strengths and weaknesses of an appeal in the same way that he/she decides whether to take a case to trial.  They are completely different animals requiring completely different analyses."

2. Preparing the Case for Appeal

Once you hire your California criminal appeals lawyer, he/she will begin preparing the case.  Initially, this involves filing and serving the Notice of Appeal and ordering the "record on appeal".  These two steps initiate the appeal and put the court and other party.known as the "respondent".on notice that you are appealing the case.

It bears repeating that the rules that govern appeals are different than those that govern trial and even pre-trial proceedings. Timelines and deadlines for filing a California appeal are critical and require strict compliance.  If your appeals attorney is not well-versed in these rules, this will surely jeopardize the success.and possibly even the survival.of your appeal.

For more information about the procedures involved in California's appellate process, please review our article on how to appeal a California criminal conviction.

3. Presenting the Case for Appeal

This is where your appellate attorney's skills really come into play, as this is where he/she performs the majority of the work.  In order to present a case properly, the attorney must thoroughly research all relevant laws and cases.  His/her writing skills and oral advocacy skills are then put to the test in an effort to present the most compelling case possible.

3.1. The appellant's opening brief

Once your California appellate attorney has had a chance to review the trial record.and research all of the issues.he/she drafts the "appellant's opening brief".  The requirements that pertain to briefs are also technical, requiring the attorney to pay great attention to their detail.

The appellant's opening brief is critical.  The brief is your opportunity to explain why your trial attorney, the prosecutor, the jury, and/or the judge committed one or more legal errors.and why you believe you are entitled to get the conviction or sentence reversed.  It is also your chance to ask the Court for the exact type of relief that you are seeking.that is, to

  • have your conviction overturned,
  • be granted a new trial, or
  • receive a different, less severe sentence.

If your California appeals lawyer does not present these arguments in a clear, concise, and persuasive manner, the appellate judges may not give your case the consideration it deserves.

3.2. Oral argument

Similarly, if your California appeals attorney isn't well-versed in the types of oral presentations that the Court favors, your case is at risk.  The judges who comprise the California Court of Appeal do not look kindly upon attorneys who simply regurgitate their written briefs.  They also don't appreciate an unnecessary amount of "legalese" or complex arguments.

Seasoned California appeal lawyers understand that they are there to help the judges understand the issues.  They know that their job is to answer the Court's questions directly and honestly.  Winning favor with the Court is essential...if an attorney doesn't appear as if he/she has mastered the relevant law or annoys or otherwise treats the judges in a disrespectful manner, this can sabotage the case.

The bottom line is that the chances of overturning your California conviction on appeal are only as good as your lawyer.  You could be sitting on a winning appeal. But if your California criminal appeals attorney doesn't know how to properly present it, the courts will never know.

4. After the Appeals Court Renders Its Decision

At some point following the oral arguments, the Court of Appeal or the "Appellate Division of the Superior Court" (the appellate court that hears misdemeanor appeals) will issue a written decision. The court will either grant or deny the relief you are seeking.

If the court grants your appeal, the appellate attorney's service is probably over. However, if the court remands your case for a new trial, it might make sense for your appeals attorney to stay on and represent you at the retrial...since by now he knows your case so well.

But what if the court denies your appeal? Is this the end of the road? Not necessarily. California law allows you to appeal the case further, to an even higher court.

Your attorney initiates this process by filing either a Petition for Rehearing (in the same court) or a Petition for Review in the California Supreme Court (which is known as a "writ of certiorari").

The timelines and rules that govern these petitions are every bit as technical and rigid as those that apply to other California appellate laws.  And, as a result, having an appeals lawyer who has experience handling these petitions is of the utmost importance.

Call us for help.

If you or loved one is in need of help with appeals and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Legal References:

1Our California criminal appellate attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

2California appeals lawyer John Murray represents clients seeking appeals in the South Bay (including Long Beach and Torrance) as well as throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster.

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