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Criminal Cases in Atlanta Federal Court of Appeals: Preparing for “oral Argument”

Kish Law LLC

The federal Court of Appeals here in Atlanta (technically, called “the United States Court of Appeals for the Eleventh Circuit) has its main office and courthouse a few blocks from me here in downtown ATL.  I do lots of cases over there.  Like many criminal appeals, I usually request what is called an “oral argument” when I take a case that is in the Eleventh Circuit.  I spent some time today getting ready for an upcoming oral argument, and wanted to discuss a little bit about this and the appellate process in general.

Many people do not realize what happens in a criminal appeal.  For one thing, the lawyer needs to very carefully winnow down and reduce the issues to only those that have a reasonable chance of success. I often need to take quite a bit of time helping clients (and their families) understand that the appeals process is generally not the court where we argue that the accused person did not commit the crime.  Instead, we are generally focusing on whether an “error” was committed at some point, either by the police, the prosecutors, the Judge or even the previous lawyer who handled the case.  Here is a more thorough explanation of the appellate process.

Now, just because the lawyer files a real good “brief” on behalf of his or her client, that does not mean the attorney will win the criminal appeal.  Most good appellate attorneys also ask for “oral argument.”  An oral argument is when a three-Judge “Panel” from the Court of Appeals convenes to listen to the arguments in 4-6 cases per day.  Most such arguments are only 30 minutes per case, meaning each attorney only gets 15 minutes to make his or her main points.  The main reason oral argument is so valuable, is that it gives the attorney the chance to provide a face-to-face summary for the Judges that refers to the most salient facts and legal principles which the lawyer believes support his or her case.  Another real advantage of oral argument is that it gives the attorney the chance to clear up any misunderstandings that the Judges might have had about the facts or legal process in a particular matter.  I cannot count the number of times that overworked appellate judges failed to understand all the facts or background of a case, and were grateful when I was able to help them better understand what happened when I answered their questions during the oral argument.   That does not mean I will always win, but it helps my case for sure.

My upcoming case is exceedingly complex, a federal post-conviction appeal that has some wickedly complicated procedural issues.  The case is old, and has been  kicking around the court systems for many years, which also means there are lots of hearings, transcripts and earlier rulings which I need to fully understand and can possibly use to my client’s benefit during the oral argument.  To help me prepare, I have scheduled a “moot court” session tomorrow with some other very talented lawyers who handle similar cases.  A moot court is where the attorney basically does a dress rehearsal of the argument, and the other lawyers pretend to be the Judges, asking difficult questions designed to flesh out the weak points in the case.  The goal is to anticipate all the possible questions, so that when the real argument happens, the attorney is pretty much prepared for everything.

I like oral arguments.  I do not have a complete count, but I think this is around the 80th time I have done one of these in my career.  I’ll write more about this case when we get a ruling, which I hope will be prior to the end of this year.

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