Appeal/Appellate

Issues

The most difficult part of the decision on whether to file an appeal is determining whether a real issue exists which can conceivably result in relief for the appellant from the judgment in the trial court. In civil cases, expense and delay are factors to consider; even if a strong issue can be defined, is it worth it to pay for the legal work on the appeal and put up with the delay inherent in the appellate process instead of settling the case now? In criminal cases, there is seldom a question about whether to appeal, since the defendant's liberty (and sometimes their life, in death penalty jurisdictions) is usually at stake.

Trial counsel has probably already identified issues which can be raised on appeal, but skilled and experienced appellate counsel can often find issues missed by trial counsel through a careful study of the transcript and the record on appeal.

Clients often misunderstand what kinds of subjects can be addressed to an appellate court as issues on appeal. Facts are determined by a jury (or by a judge if the case was tried without a jury). An appellate court cannot and will not retry the case on the facts. It can only consider issues which allege an error of law in the trial court, not factual questions such as whether particular witnesses were believable. “The witness lied” is not an issue which can be raised on appeal, no matter how silly and incredible their testimony may have been. The credibility of witnesses has already been decided by the fact-finder (the jury or judge) who was in a better position to evaluate the mannerisms, appearance, bearing, and other factors involved when a witness testifies. The appellate court has only a cold record in front of it, not real people, and lacks the ability (and the inclination, not to mention the power) to revisit the credibility of trial witnesses.

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