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Appealing a case and trying a case involve very different skill sets. This is not to say that good attorneys cannot do both. There are good trial attorneys who also do appellate work and there are attorneys who do primarily appellate work who are skilled trial attorneys.
But because they are very different skill sets, it can benefit the client, when pursuing an appeal, to go to somebody who is aware of the different procedures, the different standards of proof, and the different goals of an appeal as opposed to a trial. If you are interested in starting the appeals process, do not wait — call a Virginia appeals lawyer today.
At trial and leading up to it, attorneys are looking primarily to organize and arrange sets of fact in a way that is most helpful to the client. Sometimes there may be an issue of law that comes up that an attorney is aware is not necessarily helpful, but the attorney may have to make a strategic decision to go forward by trying to work around it through their presentation of the facts, because they may consider doing so to be more important to getting the best outcome for the client than straining for alternate legal theories to change the way the court views the legal issue.
On appeal, the facts are really not in play unless there is clear error. In most circumstances, an appeals attorney in Virginia is looking at the law and mistakes of the law that were made.
Because of this difference, it is important to have a Virginia appellate attorney who has the judgment to evaluate the record to identify the mistakes that were made, or could have been made, by the trial court, and then to evaluate the likelihood of success when appealing those mistakes as writs of error to a higher court. This judgment is especially important because appeals can get very expensive and be very time consuming.
It is important for the client to know that they have an attorney who is going to focus their energy on the arguments that will be most likely to succeed rather than just throwing everything up against the wall and hoping something will stick.
Additionally, attorneys who practice primarily in the appellate area are familiar with issues of law the trial attorney may not encounter as often. In working to make an appeal successful, a trial attorney has a big role to play in making objections at trial to the issues that will need to be appealed, but they don’t necessarily need to go into depth in making those objections. They just need to preserve the issue for the appellate court to be able to review, whereas an appellate attorney in Virginia would delve into research, writing, and oral communication to judges.
The primary responsibility of the appellate attorney is to take an issue of law that may be very complex, and may be somewhat unclear given the wording of a statute or the state of the case law, and explain it to the Virginia appellate court in a way that best helps the client and best describes the state of the law.
Finally, another reason for retaining a separate appeals lawyer in Virginia is that doing so opens the door to new evaluation of certain issues, such as whether the trial attorney actually did an adequate job. If a defendant is convicted because of ineffective assistance of counsel and then retains the same lawyer who did a bad job in his trial to continue with the appeal, ineffective assistance of counsel obviously will not be raised as an argument for the appellate court to consider.
Effective assistance of counsel isn’t necessarily the most common issue to arise, and it’s very important, if at all possible, for an appellate attorney and a trial attorney to communicate with each other, and for the trial attorney to help the appellate attorney to get a feel for the case before the appeal. The appellate attorney may run ideas by the trial attorney, understanding that if the appeal is successful, it may very well be tried again in front of the same panel or the same court. The trial attorney may be coming back on to retry the case if the appeal is successful.
Good communication between trial attorney and appellate attorney can be important, but having an attorney who is experienced with the procedures of appeal, with the issues in play in an appeal, and with good skills in writing, and research, and oral communication is essential to success. Because of this, it is very often in a person’s best interest to retain a Virginia attorney who is engaged primarily in appeals practice.
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