To understand an appeal, forget the theatrics you’ve seen on TV courtroom dramas.
A trial is lawyers talking to a jury about what happened.
When most people think "court," they think "trial." One judge, 6-12 jurors, and witnesses and evidence presented over days or weeks.
An appellate court exists to review a trial. There are three judges, no jurors, and no new witnesses or evidence.
The judges are the only ones who decide the key question, which is "did the trial judge make any mistakes that ought to lead to a new trial?" They do that by looking at the record. You need to know what that means -- it's the transcript of the trial and any hearings, along with anything filed in the court. It's paper.
An appeal is lawyers writing to each other about a mountain of paper.
Want to know more? You can watch or listen to oral arguments online to compare with trials you've seen or watched on TV. There are separate archives for the Supreme Court and for state courts.
Being good at trial doesn't help you win on an appeal.
It's as simple as that. This is C-SPAN, not Springer.
You don't have to take my word for it.
Here's what other reputable lawyers have to say about the role of an appellate attorney:
Writing for the Florida Bar Association, Roberta Mandel explains why trial counsel should retain experienced appellate counsel.
This issue of The Record (the Journal of the Appellate Practice Section of the Florida Bar) includes great articles— Confessions of a Legal Grease Monkey, by Judge Chris Altenbernd, and Top Ten Lapses of Professionalism in Appellate Practice, by Judge William D. Palmer — that illustrate the different approach a successful appellate advocate must take.
Attorney Richard Ware Levitt explains how to choose a good criminal appellate lawyer, and so does some guy named Gray Proctor.
Brian Keller, supervisory attorney for the Department of the Navy, can tell you how an appellate attorney is like a mathematician and why it's important.
I haven't met California board certified appellate specialist John Derrick but I think he's got it figured out. His philosophy, the structure of his practice, fees and progressive consulting, everything. I am only linking to his description of the skills necessary for a lawyer to successfully handle appeals, but I found his entire site to be great.
In another article in the Florida Bar Journal, Jennifer Carrol explains appellate specialization and the art of appellate advocacy.
“ Rarely is good oral advocacy sufficient to overcome the impression made by a poorly written brief.”
“[I]t is the brief that does the final job, if for no other reason than that the opinions are often written several weeks and sometimes months after the argument. The arguments, great as they may have been, are forgotten. In the seclusion of his chambers, the judge has only his briefs and his law books. At that time your brief is your only spokesman ”
“ Amazingly, many lawyers make jury arguments in their briefs, in an effort to try their case before the appellate court, rather than legal arguments. Lawyers should never disagree with what the record states. The record either says something or not. Lawyers should be familiar with the record and should never misrepresent it to the court. The brief should be straightforward and honest. A lawyer should not embellish and exaggerate in the Eleventh Circuit.”