In television, movies, and presidential press conferences, we often hear people yell "I'll take this all the way to the Supreme Court!"
While this line is often overstated, but the fact is that the appellate process is complicated and requires a zealous and experienced advocate. In a 2016 study by the United States Court system, there were approximately 56,000 appeals filed in the federal court system. Of those appeals, almost twenty-three (23) percent of appeals were criminal cases while over twenty-five (25) percent of appeals are based on prisoner petitions, such as habeas petitions or related to conditions of confinement.
I recently had to compile a list of appeals I had completed for one of the federal courts of appeal, I discovered that I had briefed well over one-hundred cases to state and federal courts. These cases included civil, family law, criminal, and OVI/DUI cases and covered over twenty-five years.
There are a couple of major misconceptions which we would like to dispel.
1. Appeals are just retrials of criminal cases.
I had a prospective client once tell me how he looked forward to his new trial in the court of appeals. I had to educate him and inform him that an appeal is a review of what happened in the lower court -- it is not a new trial. The evidence relied upon by the appellate court is what was presented to the lower court, such as a federal district court, common pleas court, or municipal court. An appellate court will not hear or accept new testimony, evidence, or other materials. If a person has to submit additional materials for review, it must be done through a mechanism such as a motion for a new trial or post-conviction petition.
2. Appeals are always granted.
This is another misconception that is out in the public. While the media often reports about cases being reversed in appellate courts, these are often the outlying cases. Per the 2016 report from the federal courts, only 6.9-percent of cases in the federal court system were reversed in the last reported year. This was tied for the highest level in the five proceeding years. A report for the celander year of 2022 showed similar numbers have continued in the federal system, with 2022 reporting that 6.6-percent of cases were reversed on appeal. There is no readily available data for Ohio's courts of appeals.
The definition of "reversed" is also tricky as a reversal could be for something relatively minor, such as correctly informing an appellant his correct post-conviction requirements or recalculating federal sentencing guidelines, to remanding the case for a new trial.
3. Any attorney can handle an appeal.
I have often been asked to review a case that has already proceeded through the initial appellate process or reviewed briefs that were filed in cases I am citing in my appellate cases. Many of these briefs have been written by attorneys who were very smart, but who were obviously not familiar with the appellate writing process. On a few occasions and out of curiosity, I have Googled the attorneys to discover that they had little or no appellate experience and often focused on areas of law having nothing to do with appellate or criminal practice, such as wills and estates.
Just as you would not ask your eye doctor to perform your heart surgery, you should have an experienced appellate attorney handle your case. Before hiring an appellate attorney, you should ask them about their experience and how many appeals they have handled in their career. For highly-specialized areas of law (i.e. criminal, patent, trademark, probate), you should ask about their experience in the underlying field of law as well.
About Attorney Adam VanHo
Attorney Adam VanHo is a former prosecutor and Assistant Ohio Attorney General who has represented clients throughout Ohio. He is licensed to practice in all state and federal courts in Ohio and Pennsylvania, including the Third and Sixth Circuit Courts of Appeal. He is also licensed to practice in the United States Supreme Court, the United States Courts of Appeal for the Fifth, Eleventh, and District of Columbia Circuits. He is also licensed to practice in the United States Court of Appeals for the Armed Forces; the United States District Court for the District of Columbia; the United States Court of International Trade; and the United States Tax Court.
Attorney VanHo is also one of less than one-thousand attorneys worldwide on the List of Counsel of the International Criminal Court.