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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Monday, October 11, 2010

Should You Advise Your Client to Proceed in Appellate Court?

When trying to decide whether or not to advise someone to seek an appellate remedy, I often begin with what my dad first taught me about news writing, modified by what my journalism teacher taught me: Who? What? When? Where? Why? and How?
Who? Does the client have standing to seek a remedy? No use proceeding if the client does not.
What? Should the client act or  do nothing?
When? Has the deadline passed? Is the matter ripe for review? Appellate deadlines can be brutal, and, on the other hand, some obvious errors can't be fixed until years after they have been made.
Where? In rare cases, you might have a choice where to proceed, but usually not. Your only reasonable hope for some kinds of relief may be in a federal court, but it is usually against the law to start your appeal of a state court matter in the federal system.
How? If the client should act, is this a case for appeal or for a writ?
Why? The vast majority of appellate proceedings don't get the complainant any relief. A client's back may be against the wall such that everything must be tried. There are also cases where taking appellate action may have good side effects, such as to postpone an adverse judgment's becoming final when delay would be salutary for the client. Note, though, that delay may not be pursued merely for its own sake.
I intend, for the next couple of years, to share with you, bit by bit, what appellate matters call for appellate lawyers to think about. I fear that for a few of you what I am going to say is old hat. As I was outlining what I wanted to talk about, it seemed to be a huge amount of material.
If you want to eat an elephant, you must do it a bite at a time. We will, and I intend to salt it with fun.

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