Why an Appellate Attorney Should Review the Record Before Taking on an Appeal

Posted on 28 May, 2014 at 11:55

The prospective client should never hire an appellate attorney that is willing to take the appeal without reviewing the record. The record is what the appellate court will consider on appeal. Thus, an appellate attorney that immediately agrees to take your case is usually a waste of time. An appellate attorney must comb through the record to discern if there is prejudicial error warranting a reversal of the Lower Court’s decision. This is often a laborious process so it is normal if an appellate attorney charges a case analysis or case review fee to look over the case file. Like a doctor needs to perform an x-ray to determine your injuries, an appellate attorney must perform an x-ray of the record. After a review of the record, an appellate attorney will be in a much better position to decide the next step in your case. 


An appellate attorney should review the record before taking on an appeal for numerous reasons. Unlike litigation, where much of the facts and circumstances are at issue and plagued with conflicting versions of events, appellate attorneys are bound by the record on appeal. It is only in a rare circumstance that the error warranting reversal is found on the face of the judgment or decision. It does happen, but it is rare. The record is where an appellate attorney must look to decide if the appeal is meritorious, and failure to review the record before taking on the case can be disastrous.


Many times people approach an appellate attorney wanting to appeal a case; however, upon a review of the record, there is no appealable issue. All too often, prospective clients walk through the door with a laundry list of why they should prevail on appeal. This potential client is sometimes quite accurate in describing the errors that occurred in the Lower Court. One problem - review of the record reveals that no error was preserved for appellate review. In another instance, the potential client again provides the appellate attorney with a plethora of reasons they should win on appeal. Upon review of the record, the appellate attorney finds that none of the reasons listed by the potential client are anywhere in the record. After a conversation with the potential client, they advise you that they did not realize that they should have raised these arguments in the Lower Court, but now want to explain this new version of events to the Appellate Court. These two circumstances place the appellate attorney in an unenviable position. The client is expecting you to perfect an appeal, and you have now accepted a retainer for an appeal that has no appealable issues. Filing a frivolous appeal (one in which there is no colorable argument on appeal) is a waste of the court’s time and of the client’s time.


The appellate attorney’s review of the case file before taking on an appeal is beneficial to the potential client. Review of the record will reveal if there are appealable issues which can be discussed with the client. This will provide the client with some information on the scope of the appeal so that they can make an informed decision in retaining your services. Most importantly, review of the record on appeal will also reveal if there are no appealable issues. If there are no appealable issues, the appellate attorney can explain this to the potential client so that they do not waste their money on a case that has no appealable issues and thus, no ability to win on appeal. Clients retain an appellate attorney for a fighting chance, and a record that reveals no meritorious appellate issues is dead on arrival. 


Written by:   Alexandra C. Siskopoulos, Esq. 

Telephone:   (646) 942-1798 

Email:           [email protected] 


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Categories: Appellate Attorneys