About The Author
A former law clerk to the Chief Judge of the United States Court of Appeals for the Fifth Circuit, Mr. Gerald Birnberg
is admitted to practice (and has actually appeared) before six federal circuits (the United States Courts of Appeals for the Fourth, Fifth,
Eighth, Ninth, Tenth, and Eleventh Circuits). In addition, Mr. Birnberg has been a Member of the Bar of the Supreme Court of the United
States for more than 40 years, and has argued cases before that Court twice and participated in preparation of plenary briefs and arguments
before the Court in five other cases, as well as authoring several Petitions for a Writ of Certiorari or Oppositions thereto filed in that Court.
Mr. Birnberg is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization and has argued cases or filed briefs in
more than 100 state and federal appellate cases. He also teaches a course on Recent Supreme Court Cases at South Texas College of
Law.
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Appeals
Frequently Asked Questions About Appeals By Gerald M. Birnberg
When should an appellate specialist be retained in a case? If the case can support an appellate lawyer in addition to trial counsel, it is by far best to associate appellate counsel well before trial. Before trial, appellate counsel can assist in the preparation of jury questions and instructions, and well as legal memoranda concerning important legal issues in the case. Trial counsel can concentrate on evidentiary matters (witnesses, exhibits, documents, depositions, etc.) while appellate counsel focuses on "the law." At trial, appellate counsel can be crucial in preserving error for appellate court review, and avoiding legal pitfalls that might result in reversal of a favorable judgment, or affirmance of an unfavorable one. And after a verdict has been returned, time limits may make it virtually impossible for appellate counsel to learn enough about the case quickly enough to preserve error properly (through a motion for new trial or for judgment notwithstanding the verdict). "Preserving error" properly in the trial court (or avoiding it) is mandatory to be able to present points to the court of appeals. Appellate counsel are knowledgeable in doing this, but generally they can do so only if involved in the lawsuit before the case is called to trial.
How much does an appeal cost? How long is a piece of string? It depends on the number of issues involved, their complexity and novelty, the time available to prepare a brief (expedited and emergency appeals frequently cost far more than ordinary appeals; bringing in an appellate lawyer at the last minute usually results in substantial additional cost), the length of the trial (if any) in the lower court, whether oral argument is requested or granted, the appellate level (highest court or intermediate court), and, frankly, the amount in controversy (major cases may justify substantially more work and therefore expense than more run-of-the-mill cases where less money or other relief is involved). The range is from a relatively few thousand dollars (though such cases are relatively rare) to tens of thousands (or even more than $100,000 in the most extraordinary cases). Most appeals would probably be in the range of $25,000 (give or take $10,000-$15,000), but any given case could vary substantially from that norm.
The out-of-pocket costs of an appeal will include filing fees (generally in the range of $100), costs for preparation of a transcript (figure on $750 per day of trial as a pretty good rule of thumb), computer assisted legal research expenses (usually a few hundred to a few thousand dollars), printing, photocopying and/or binding costs (usually less than $1,000), travel expenses if the case is to be argued in another city, and miscellaneous expenses (like fax costs, long distance charges, and routine photocopying). There could be some other charges (like overtime secretarial services in last-minute situations), but these include the bulk of the out-of-pocket costs in the ordinary appeal.
How long do I have to file an appeal? Appellate deadlines are very limited and jurisdictional. If you miss the deadline for filing a notice of appeal, the appeal cannot be considered. Appellate deadlines vary from state to state and are different for the federal system than for state systems. As a general rule, you will usually have to file a notice of appeal within 30 days after the court signs a judgment. In some circumstances (as where post-verdict or post-judgment motions are filed in the trial court) the time limits are extended, and in some cases (like interlocutory appeals) it is necessary to file a notice of appeal in a shorter period of time. Either way, it is crucial that the time limits be scrupulously observed. Finding out the applicable time limits should occur immediately after the jury verdict is announced (if not before).
How long does an appeal take? Again, this varies depending on the complexity of the case, the workload in the appellate court where the appeal is filed, and various other factors. However, as a general rule, it typically takes a couple of months for the trial record to be prepared, a little more than a month after that for the appellant to file a brief, about another month for the appellee to submit a response, another two weeks for the reply brief to be filed, and another month or two for the court to decided whether or not to schedule oral argument on the case. If oral argument is granted, it will usually be held within about 90 days after counsel are notified, and an opinion is usually announced within about 60 days after the oral argument is held. If no oral argument is required, the court of appeals will usually rule within 60 days, or so, after deciding to forego oral argument in the case.
After an opinion is announced, the losing party can ask the court to reconsider. This usually takes about two weeks to file (again the time limits must be scrupulously observed) and another two to three weeks for the court to rule upon. Thus the total time from filing of a notice of appeal until final disposition in the court of appeals generally runs around 10 to 12 months, but the time can vary greatly from case to case.
What are the chances of winning an appeal? Not real good, frankly (if you lost in the court below).
Should the same lawyer who tried the case in the trial court handle the appeal? Usually not, though in a smaller case it might be more economical to use the same lawyer, rather than educating a new one about the case. In other cases, however, it is usually wise to hire an appellate specialist to handle the appeal (even if trial counsel is retained to assist in the appeal). In the first place, trial counsel are typically more skilled in handling trial matters than appellate matters. Further, the appeals process is filled with procedural pitfalls that could trap a lawyer who is not completely familiar with them. Additionally, the fresh perspective of a new lawyer may reveal an angle to the case that has been overlooked by trial counsel. Finally, the persuasive skills of a trial lawyer may be great for presenting a case to a jury, but not especially effective to the audience of a panel of appellate judges.
How do I find/select an appellate lawyer? Start by asking trial lawyers for a recommendation. Or check with the state bar association's specialization board to obtain names of board certified appellate specialists in your area. If you have access to legal research tools (such as Westlaw or Lexis/Nexis) find a case similar to the one you are involved with and note the lawyers who handled that case on appeal. Or, ask a retired judge (especially an appellate judge) for a recommendation.
What's the best way to settle a case that's on appeal? Just because the jury (or trial court judge) has decided the case at that level does not mean that the case cannot or should not be settled. On the contrary, the cost, uncertainty, and delay of the appellate process counsel in favor of seeking settlement even when a case is on appeal.
Mediation during the appellate process has been proven to be an effective way to settle many cases while on appeal. But timing can be tricky. If settlement efforts are commenced too soon after a verdict, the emotions of the trial may interfere with the settlement process. On the other hand, if the litigants wait until the appellate briefs are complete, they may have expended substantial sums that could have been used to settle the case (or lessen the settlement demand). But the parties must know what appellate arguments the opponent intends to make, in order to assess the strength of the other side's case and therefore the advisability of settling.
If settlement efforts are going to be undertaken, the appellate court should be informed so the appellate deadlines can be modified. Most appellate courts are happy to accommodate the litigants in this regard.
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