Hiring an attorney is your safest and best bet for addressing complex legal problems. Never attempt to represent yourself in court. As the old adage goes, “He who represents himself has a fool for a client!” Never is this more true than in the arenas of appellate and post-conviction litigation. Why?
Because these areas of law are procedure-oriented, which means that if you fail to follow every single procedural rule, and clear every procedural hurdle, a judge can dismiss your case without ever reaching the merits. In other words, it will not matter how strong of an argument you have for your innocence, exoneration and freedom. If you fail to follow all of the procedural requirements, you can automatically lose by default, with the substance of your merit-based and fact-based arguments never reached or considered.
The following content are generalities regarding the law. If you are curious about learning more, it is advised that you speak directly with an attorney immediately.
Question: How is the appellate process organized?
Answer: The appeals process begins immediately after a verdict and sentence is issued by the judge in the lower trial court (which is called a “district court” in Kansas and also in the federal system, or a “circuit court” in Missouri). After that court makes a final judgement, the defendant can appeal, and does so by filing a short document entitled “Notice of Appeal.” This document is actually filed with the clerk of the trial court, who then begins the process of transferring the case files to the appellate court. Meanwhile, the attorney who will be handling the appeal for the defendant begins formulating issues to be argued to the judges of the court of appeals, and identifying the documents the trial court’s clerk will need to transmit over to the appellate court.
In appellate courts, the attorney for the defense will try to convince a panel of judges that the prosecution or trial court committed legal errors, which should result in an order for a retrial, a reduction of sentence, or a reversal of the conviction and dismissal of all charges. If this appeal fails, the defendant can try appealing again to the state or federal supreme court.
Although a post-conviction case differs in many significant respects from an appeal, both are pursued with the goal in mind of reversing a conviction or shortening a sentence. While post-conviction litigation is explained elsewhere on this website and in the blog section, keep in mind that a defendant who loses a post-conviction challenge can appeal the denial of post-conviction relief, just as he or she did in their direct appeal.
Question: Is there a deadline to file an appeal?
Answer: Yes, always! The deadline, however, differs from state to state, and from that in the federal system. But never take “no” for an answer. Most appellate courts have rules which contain residual clauses that provide for ways to argue that an appeal filed “out of time” and beyond the deadline should be considered nonetheless, the same as if it had been filed on time initially. And, if a defendant’s appellate attorney misses a deadline, there are ways to re-open the appeal through an “ineffective assistance of appellate counsel” claim in post-conviction proceedings. So never lose hope. Consult with a competent appellate/ post-conviction lawyer before ever giving up on the basis that it is too late.
Question: Do I have grounds for an appeal if my defense attorney was incompetent?
Answer: Yes. As explained elsewhere on this website, defendants have the right to a competent counsel. By carefully reviewing the details of your case, it may be determined that your original defense attorney failed to provide an adequate defense. This information can be used in a post-conviction case where the defense argues the original defense attorney committed legal errors, so much so that the case deserves a retrial, reduction of sentence, or dismissal. And, if a post-conviction claim is initially denied, that ruling can indeed be appealed, in most instances.
Question: Why do I need an attorney?
Answer: There are many reasons to seek an attorney. Lawyers receive particularized education in the law and in the procedures which guide the processing of a case from start to finish. Lawyers who actively practice in the courts then gain specialized knowledge through their years of experience in handling complicated legal matters. A knowledgeable lawyer will reveal to you legal avenues which you might not have known existed, as well as suggest viable strategies to achieve your legal objectives. Though there are no guarantees in the world of litigation, an experienced defense attorney can maximize your chance of a positive legal outcome. Some people, however, think it is possible to win a case by waiving their right to an attorney, instead attempting, themselves, to control the narrative for the court. They develop their strategies by gleaning plans found by browsing legal websites, or even just by watching TV dramas. This seldom works to their advantage. The areas of criminal, appellate and post-conviction law are filled with procedural hurdles, often made incomprehensible to the general public by “legalese,” or legal language. Put your energy to better use by spending your time trying to hire the best, most experienced attorney to guide you through your legal process, rather than developing your own strategy which may or may not conform to the rules and procedures which limit how legal arguments can be presented. There is too much at stake for you to not have capable counsel on your side.
Question: How do I choose an attorney?
Answer: Choosing competent legal representation is likely the most important decision to make when facing a trial, appeal or post-conviction proceeding. When choosing a lawyer, first meet with several attorneys, and listen carefully to how they approach their interaction with you. If an attorney spends most of the meeting telling “war stories” and describing past victories to you, this might be a sign of a lawyer who is less interested in addressing your specific and unique needs. It might be best to move on. The same holds true if the attorney mentions how extremely busy he or she is, or how many people the region over all wish to hire that attorney. While popularity and community-standing are important, a volume of other peoples’ cases is a bad sign. After all, a busy attorney will likely have no time for the demands of your case, and will be unable to provide the time and dedication needed to maximize your chance for a desired outcome or victory. In these face-to-face meetings, it is best to “go with your gut” and lean towards hiring the attorney who can best explain the upcoming legal proceedings in language you can well understand. Outside of the face-to-face meetings, collect information on several attorneys, and then compare and contrast their strengths and weaknesses. Ask to see writing samples, as well as several recently-filed “motions” and “briefs.” Inquire into the attorneys’ research methods. (If an attorney cannot name for you their “legal research engine,” this is a sign of a lawyer who does not spend a lot of time researching and keeping current on new trends in the law.) Ask about the attorneys’ wins and losses. Determine if the lawyer is comfortable with making objections during a jury trial. (A lawyer who passes on objections fails to preserve valuable appellate rights should you lose your trial.) Use the “PACER system” to research federal court records in order to determine the experience level of each attorney within the federal court system.
Always meet with each attorney you are considering for hire, in person. Never hire an attorney over the phone or the internet; nor should you divulge the details of your case over the phone or the internet. Until you meet that attorney, they are still no more than a complete stranger to you. Don’t share important details of your case with a stranger. Meeting your attorney in person will ensure several things: that they prioritize your case enough to meet you in person, and they have a law office that is professional and accessible. Don’t share legal advice between lawyers, to compare. Why not? Because the second lawyer can easily mimic the first, leaving you unable to know for sure whether the second lawyer would have recognized strategies that the first lawyer saw. Letting each lawyer share with you his or her plan, without knowing what others have opined, helps you determine which attorney can formulate the best arguments, rather than opportunistically piggy-back on to what you just divulged was told to you by the previous attorney with whom you just visited.
To increase the chance of a positive legal outcome, your attorney should be: licensed “in good standing,” experienced, successful, ethical, knowledgeable, dedicated and peer-reviewed. Your attorney should be able to conduct thorough legal research, and communicate with you clearly, in terms you understand, not in “legalese.” This includes giving understandable legal advice to the client, and presenting strong, cogent and concise written arguments.
Question: Should I ever consider hiring more than one attorney?
Answer: Yes. Constructing a legal team is sometimes to best way to proceed with a vigilant pursuit of your defense or claim. Different attorneys often bring to the table a variety of different strengths and specializations.
Question: What should I do if I suffer a personal injury?
Answer: First, seek the medical attention you need. Follow any advice given by your doctor. Keep a detailed record of your injuries, and how you are progressing. You should always hire an attorney before submitting to any interviews by people who caused your injuries, or who represent insurance companies. Never try to interview witnesses that saw the injury, yourself. Again, this is a task for an experienced attorney and his or her staff. Don’t talk to insurance adjusters before talking to a lawyer. Don’t talk to company liaisons before talking to a lawyer. Hire a competent lawyer who knows personal injury law.
Your choice of a lawyer is an important decision and should not be made based upon an advertisement. The information contained on this website is necessarily of a general nature, only for informational purposes.
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Still have questions regarding an appeal or post-conviction proceeding? Contact our office today for a free consultation about your legal matter, or call our office at (816) 421-5200.