Appeals

Most people will never be involved in an appeal. In fact, many lawyers will never handle an appeal. Appeals are a specialized area that requires unique skills. An appellate lawyer spends his or her time researching and writing and understanding the different rules that apply to an appeal. In most cases, if you are involved in or expecting an appeal, you should have an appellate lawyer on your side.

What Does An Appellate Lawyer Do?

First and most obviously, an appellate lawyer can help you appeal a loss in district court or defend your victory. But having an appellate lawyer on your trial team can also put you in a better position to win on appeal. And appellate counsel can also help with uncommon procedures such as writs of mandamus or superintending control, cert petitions, or amicus briefs.

How Can an Appellate Lawyer Help You in District Court?

Having an appellate lawyer on your trial team can be critical for preserving issues for the appeal. Often, an appellate court will decline to consider an otherwise good argument because it was not made at the district court level. This is called “preservation”–you preserve your argument by giving the district court a chance to decide it; if you do not, you generally cannot later raise that argument on appeal. All to often, potential arguments on appeal are lost because trial counsel did not preserve them below.

An appellate court “review[s] the case litigated below, not the case that is fleshed out for the first time on appeal.”

In re T.B., 1996-NMCA-035, ¶ 13, 121 N.M. 465.

Having an appellate lawyer on your trial team helps avoid the mistakes of failing to preserve arguments. This can include assisting with jury instructions, findings of facts and conclusions of law, and pretrial motions. Or it can be as simple as doing the research ahead of time to know what must be done to win.

Why Should You Use an Appellate Lawyer for your Appeal?

Appellate law is a different skill set from trial law.  Very few attorneys are good at both. In most cases, it is a good idea to involve an experienced appellate attorney at the appeal portion of your case. 

Often, the impulse of a trial lawyer handling an appeal is to retry the case. But that is not how an appeal works. The appellate court is bound by standards of review, which dictate what is and is not reversible error. Those standards are, more often than not, more favorable to the winner below. For example, if you lost an fact issue at trial, it will be very difficult to get it reversed on appeal. That is because the standard of review for fact issues requires affirmance so long as there is evidence to support what the trial court did. It does not matter if there was also evidence that could have supported a different result. An appellate lawyer knows and applies these standards of review to identify errors that could justify reversal.

Do you need help with an appeal in New Mexico? Are you an attorney with a trial coming up who would like assistance in maximizing your chances on appeal? Give me a call, I would love to help.