Why Hire Appellate Counsel?

Trial attorneys and appellate attorneys fulfill fundamentally different roles in our criminal justice system. Trial attorneys spend months prior to trial preparing a case by meeting with the client, reviewing discovery, locating and interviewing witnesses, working with experts and investigators, walking through crime scenes, negotiating with prosecutors, attending court conferences and making pre-trial motions. If the case does not resolve in a manner that is satisfactory to all parties prior to trial, the trial attorney will prepare examination outlines for prospective witnesses, select a jury and try the case. The formal role of the trial attorney ends there if the defendant is found “not guilty”, or at sentencing if the defendant is convicted.

The function of an appellate attorney is very different. The trial attorney is primarily responsible for making a record of the proceedings before the trial court. This includes submitting briefs in support of legal positions taken before or during the trial, participating in any pre-trial motion hearings that were necessary, and conducting the actual trial. Taken together, all of this activity creates a trial record.

The trial record forms the basis for any appeal that may be taken in connection with the case. Generally speaking, the appellate attorney does not add to or otherwise alter the trial record. Rather, the appellate attorney must take the record as created by the trial attorney, and carefully review and analyze it with an eye toward identifying issues to be raised before the appeals court. A skilled appellate lawyer in New Jersey will be able to identify all issues contained in the trial record. This work is very analytical and detail-oriented.

The courtroom presentation made by a trial attorney differs remarkably from the presentation that a New Jersey appellate lawyer makes to a panel of appellate judges. The heart of a trial attorney's presentation will be made before a jury. Most jurors are lay people with little, if any, formal legal training. A trial attorney must educate them about the facts of the case by presenting the story of the case in a light most favorable to the defendant. The arguments made by an appellate attorney are based upon the facts contained in the trial record, but focus primarily on legal principles and doctrines that are unfamiliar to most lay people. These arguments are not made to jurors, but to experienced appellate judges who are fully familiar with the trial record and the applicable law.

The mode of presentation is also very different. Briefs submitted at trial tend to be relatively short, and tend to focus on discrete issues. The most significant part of a trial attorney's presentation is oral, and comes in the form of oral argument, opening and closing statements, and questioning witnesses. The subject matter of an appellate brief spans the entire trial record. The brief is often the length of a short book. They are detailed documents that require good writing and organizational skills. A New Jersey appellate lawyer will make a live presentation at oral argument, but the lion's share of the arguments on appeal are made in carefully written, meticulously organized briefs.

Appeals require skills that differ dramatically from those needed at trial. If an appeal is necessary after trial, the defendant/appellant needs a skilled New Jersey appellate attorney to continue the case to the next stage.

James S. Friedman, LLC, represents criminal defendants in the State and Federal appeals court in New Jersey. If you are seeking to appeal a criminal conviction from the New Jersey Superior Court, or from the United States District Court in New Jersey, contact us online or call us toll free at 800-361-6554 to discuss your criminal appeal.