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When can a case be appealed?

  • By antollino
  • Law posted:Appeals
  • Date:September 12, 2018

I love appeals. You need a lawyer who knows appellate law and procedure if you are appealing and expect to win. My record of wins when I am defending appeals is almost 100% (in two cases, the court made little changes). My record on appeal as the appellant – the party trying to get a new decision – is about 40%. That is well above average for cases being overturned (5-10%), but I will not take a case on appeal unless I am convinced there is a legal error that is unsettled and needs to be decided. My reputation is too important for me to be taking lousy appeals. Sonia Sotomayor, when she was a lower appellate judge told me that in no uncertain terms in the 2000’s when she said to me, “Counsel, what are you asking for?” I had no case but took it on appeal because someone was paying me. I will take a paid appeal, but never one that doesn’t have an important issue at hand.

The appeal of a criminal or civil case is something anyone can do, and that I have a good record at, but is often widely misunderstood. If you lose your case in New York – and I can do an appeal anywhere in the country – you may immediately start notice your intention to appeal, but that is not the end. All of the papers in the case – the transcript if there was a trial – have to be collected, printed and agreed to as accurate. According to the American Bar Association, the only basis for an appeal is that there was a legal error. A legal error is when the law was not properly applied or improper evidence was allowed or the jury was given bad instructions.

An appeal is not a new trial. The court will not rehear the case. You will almost never get a chance to provide evidence or testimony. Many times, the court makes a decision based on the paperwork you file for the appeal or based on written briefs of the trial. Sometimes, oral arguments may be heard, but they are kept very brief.The oral argument is important in some 25% of cases, and appeals are granted in 5-10% of cases, civil or criminal.

The U.S. Supreme Court does not decide but only hears about 5% of the cases that try to have the result changed. I have filed petitions for certiorari – and two of them had important legal issues – but none of them were taken. Right now, a case I won at the Second Circuit Court of Appeals is being challenged at the Supreme Court. My name is on the brief but I had lots of help. We will probably know if the Court takes the appeal (and we hope it does not – we won already – but that doesn’t mean we’ll lose, even if the Court takes it. We’ll just have to worry for another nine months. The case is Zarda v. Altitude Express, 100 F.3d 883 (2d Cir. 2018) (en banc).

Only you as the defendant can appeal a case. The prosecution usually cannot because of the double jeopardy law. Your first appeal is at the state level. The court can affirm the decision of the trial court, which means it found no legal basis for that court’s verdict to be found invalid or it can remand the case and send it back to the trial court for further examination. If you lose on appeal, you may be able to go to the federal level, but generally this is reserved for constitutional rights violations only.

This information is for education only and is not legal advice.


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