Every time I heard about a high-profile criminal conviction or a defendant who loses a civil case, the first thing out of the lawyers’ mouths is how they will appeal the verdict. How can lawyers know the moment a verdict is rendered that they have a valid basis for appeal?
Doesn’t an appeal have to have a legal basis that demonstrates there was a flaw in the trial, like a legal error by the judge, or information that prejudiced the jury? Or present new evidence that refutes the other side’s case not known at the original trial? They can’t just appeal because “We maintain that our client is innocent.”
How often is an appeal actually granted? Are these lawyers just grandstanding or do they really get their appeals?
Mostly. Sometimes it would be immediately obvious that an appeal is a possibility but usually it takes careful consideration. So any immediate public announcement of an intention to appeal is probably mostly grandstanding by a client who wants to keep clinging to the belief they haven’t lost.
This is my understanding as well. For most high-profile cases, the attorney for the accused will also always open with a “not guilty” plea, no matter how red-handed the person is.
You can always appeal on the basis that, given the evidence before them, the jury could not properly reach the verdict they did. But that’s a very difficult appeal to win. Still, the fact that it’s an appeal that is always available makes it possible for lawyers to say immediately “we’ll appeal!”, and only then spend some time thinking about more colourable grounds for appeal.
In Trump’s case the question of whether he has any arguable case on appeal doesn’t really factor into the decision to appeal. Trump is famous for multiplying and spinning out legal proceedings as a tactic to oppress adversaries with limited resources (such as Carroll). So he would not only announce an intention to appeal but almost certainly pursue an appeal to the bitter end regardless of the strength of this case or the prospects for success.
It’s not just high-profile cases, the defense initially pleads not guilty unless their lawyer is incompetent. You can’t make a plea deal in exchange for a guilty plea if you’ve already plead guilty at arraignment, you’d go straight to sentencing.
As I undesrtand, any lawyer can file a motion to appeal if his client requests it. They can write up a pretty brief with lots of nonsense words and barely relevant precedents, if that’s all they have. There’s always some fragmentary issue that might be grounds for appeal.
Trump’s lawyers for example, requested to case be summarily dismissed (“We claim she doesn’t have a case”) and the judge denied it. They can appeal that.
The appeal court, as I understand (IANAL) then reads the brief and (like SCOTUS does quite often) simply say “we aren’t even going to consider this”. Normally they can tell BS from serious issues. Usually, end of story. I assume Trump can appeal their dismissal, to the next level and rinse and repeat. I assume too that each round of appeal postpones the date at which he would have to pay up.
(But generally, if the first appeal level says “not worth our time” then it would be a miracle for the next levels to consider it…)
As several of Trump’s lawyers have discovered - at their personal cost - this is only technically true. Technically, the lawyer can always file something. But it is not true that there is always a fragmentary issue that stands up to scrutiny to an extent to avoid the lawyer suffering sanctions.
I was under the impression lawyers kept track of all the legitimate things they could appeal for during the trial, so they’d already know if they’d likely have something they could appeal on.
Laypeople have this view of lawyers and it’s not totally wrong for all lawyers. However, I can tell you from personal experience that you do not hold onto high quality clients for 30+ years by persuading your client to take action they will lose.
When I advise a client to appeal, it’s after extremely careful thought about the chances of the appeal succeeding, and even then it’s nerve wracking. I don’t give a damn about the fees I’ll make tomorrow. I care about the fees I’ll make (and professional job satisfaction) if I do a good job and the client remains a client and gives me more work for the foreseeable future.
At least somewhat true at least some of the time but as I said above, it depends. Sometimes you may be able to scan a judgement and immediately know that a critical point is one that a higher court would be interested in revisiting. I would say that more often (at least in my practice) you have to scrutinise the judgment very carefully before you can work out that it has “holes”. Needless to say, despite what you may read in the media, most judges are pretty smart and give judgments that are - at the very least - superficially plausible.
This would go for all professions - plumbers, computer repair, auto mechanics. You can pad the bill, make extra work using techicalities the cleint won’t likely understand, blame others or the material, etc. Most people are basically honest and busy enough they don’t need to make up extra work.
A lawyer I was once talking to mentioned appeal as “the judge does something wrong. The appeal court either overturns it or sends it back as a way of telling him he was egregiously wrong.” He was talking about some rural judge who was acting petty, said while local lawyers might be afraid to appeal because the judge could retaliate with harsher sentences on future clients, this guy only appeared there once a year or so, and it was a benefit to him that the judge was aware he was not afraid to appeal - where the higher court would basically let the judge know he wasn’t doing things right.
That’s correct, especially for such a high-stakes trial as this one.
I haven’t been following this case closely, but I gather there were some key pre-trial motions:
should the “grab 'em” tape be played to the jury?
should the portion of the deposition tape, commenting on the “grab 'em” tape, be played to the jury?
should the two friends who Carroll spoke to shortly after the assault be allowed to testify?
should the two other women who claimed to have been similarly assaulted by Trump be allowed to testify?
All of those issues turn on points of the law of evidence, so could be subject to an appeal, and since they’ve already been argued in the trial court, Trump’s lawyers have the legal research done, and could be confident that they can make reasonable arguments on those points.
As others have commented, it’s much harder to challenge the jury verdict as “unfair” or “unreasonable”, but the legal argument for these points is that if any one of those evidential rulings had gone the other way, the jury could have reached a different result, so the verdict should be set aside.
Outside of movies, lawyers don’t go around yelling “This whole court is out of order!” The assumption is that the legal system as a whole works and delivers the proper verdicts. So if your client was just found guilty, you as a lawyer have to assume there was a correctable flaw in the trial and you can fix this via the appeal process, even if you haven’t discovered what the flaw is yet.
In the US, in most cases, there is right to a first appeal. That means that the appeal is not discretionary for the appellate court. So, the first-level appellate court can’t just say, we decline to consider your appeal (assuming you followed the correct procedures and time limits).
Most trial lawyers do keep track of rulings that went against them, which they think could be a basis for appeal. Trial lawyers aren’t always the best at evaluating their own issues for appeal, though – it’s often a good idea to have separate appellate lawyers. But there is very often one or more issues that are legitimate grounds.
A lawyer needs to have a nonfrivolous basis for filing an appellate brief. But a notice of appeal almost always gets filed to keep the options open.
My understanding is that was Alan Dershowitz’ main role during the O.J. Simpson trial. He was preparing grounds to file for an appeal if Simpson had been found guilty.
In anything but the most simple case, there is going to be something that the lawyer can file an appeal about - evidence that should or should not have been admitted, improper sharing of evidence, etc…
And while most appeals aren’t successful, enough are (Bill Cosby’s case, e.g.) that it’s worthwhile.
I must disagree. Absent a few exceptions (so called “fundamental errors”) issues have to be preserved for appeal in order to raise them. That is, the legal issue must have first been timely raised in the course of litigation. And, there must be an argument that the trial court’s (erroneous) ruling against you affected the ultimate verdict.
So, as a lawyer, at the end of the trial, you know what issues might potentially be litigated on appeal - it was all the times the court ruled against you.
You’ll also presumably know how strong or weak your arguments were when you made them, based on whatever research you might have done at the time.
Yes, exactly. You know which rulings went against you, and how important they were. You also know which ones you thought were novel issues, or close calls, and which ones you made an argument, but you knew the law or facts were against you.
There’s also an art to appellate law, in terms of choosing your issues. You don’t necessarily do your client any favors by assigning error to every ruling that didn’t go your way.