On the Satisfaction of Doing Criminal Appeals

During the second semester of my senior year in college, I submitted a paper for my English class that was three-quarters of a page long. It was my last assignment for a class I was taking pass/fail and I already knew I was going to pass. But I had to turn in something — anything — so that I wouldn’t get an incomplete.

The comment I got back from the professor was this:  “This is well-written and you have some good ideas. But you need to develop your ideas.”

Thirty-five years later, I am still working on my ability to develop my ideas in writing. Fortunately, doing criminal defense appeals is helping me get better at it.  It is amazing what you can do when you have an excuse to devote just a little bit more time and thought to something.

After prevailing with the very first two briefs I filed, I have had a string of losses ever since. But, as with anything you spend a lot of time on, I am getting much better at it. I am also enjoying it immensely.

For one thing, criminal appeals involve very little interaction with clients. Although I am usually kidding when I tell people this, it is true. Of the 15 or so cases I have worked on, I have only met two of the clients in person. And one of those meetings was on the day of my oral argument before the D.C. Court of Appeals.  The client hadn’t responded to any of my communications. He didn’t introduce himself to me in the courtroom until I was walking up to the bar of the court after our case was called.

The “little interaction with clients” thing is a nice change of pace in a practice that otherwise involves all sorts of exposure to clients through meetings, telephone calls, site visits, and court appearances. It is also good for an introvert such as myself who is happiest when sitting in the armchair next to the fireplace in my home study.

The other thing I like about appeals is the much deeper understanding you get for the law on any particular issue. It is one thing to review the case law for a pre-trial motion or trial. It is another thing to read every opinion ever written in your jurisdiction on the issue while taking the time to think things through.  I now feel like an expert on every issue I have ever briefed during an appeal:  Jencks, constructive possession, the definition of “operation” in a DUI case, the failure to preserve evidence, and so on.  And this confidence spills over into the trial arena.

Just the other day I was in the enviable position of having the prosecutor cite a case in court that I had briefed exhaustively as part of an appeal. As it is with many overworked prosecutors, the prosecutor’s understanding of the case seemed derived largely from the headnotes.  I had to restrain myself – I am still working on my light touch. But I was able to draw the court’s attention to many of the subtleties of the case that my adversary seemed to have overlooked.

I am currently putting the finishing touches on a brief that is due Monday. Maybe that is why I am feeling so contemplative about appellate work.  But this is my favorite part of the process.  You have already done the hard work – the research, the thinking and the writing.  Now you are re-thinking things, tinkering with the language, trying to make things better. Assuming you had at least something to work with, as I did with this brief, this can be very satisfying.

I also enjoy the front end of the process. You have the transcript in front of you and, for just a moment at least, the sky seems to be the limit. It is fun to watch the trial unfold. You get a feel for the players – the lawyers, the defendant, the witnesses, the judge. You also know the outcome – you know, for example, that the defendant is going to lose or otherwise you wouldn’t be doing this appeal. It is interesting to find out how you get there.

I almost always have a moment of panic during any appeal. While this may not be the case with appellate lawyers who are smarter or more experienced than I am, it is rare that I will immediately recognize the issue or issues that I will ultimately appeal. After all, the judges in D.C. are pretty damn good.  Instead, there is usually this moment when I am thinking, oh my goodness, the court made all the right decisions, what am I ever going to appeal?  While reading the brief, I will almost be hoping that the court will make an evidentiary ruling against my client.  At least that way there will be something concrete to appeal.

But I have always found something and that something usually gets bigger and bigger the more I think about it and the more I research it. In the end, by the time I have finished the brief, I am almost always absolutely persuaded by the righteousness of my cause.  Given my win-loss record, I am more often wrong than not. We will have to see if that is the case with this latest brief.