The Post-Appeal Question: Why Did You Fail?

While appellate practice can be very gratifying from the lawyer’s perspective, it isn’t always as much fun for the client.  In 2007, the Appellate Divisions that cover New York City reversed a grand total of 45 criminal convictions.  So when that 46th lawyer you run into tells you that he too got a reversal, you know that something is wrong.

One of the hard truths of doing appeals is that the odds are stacked against you.  They are really stacked against you.  As much as you inform a client, and his family, that it’s an uphill fight, they believe that their case will be the one that gets reversed, and the “justice” will be done for them because they, more so than anyone else, have been maligned by the system.

For some, there is a lot of truth in their belief, but their conviction just doesn’t have anything so gripping that it catches the appellate court’s interest sufficiently to give it serious thought.  To a large extent, the threshold question is whether they believe the defendant was guilty and got a generally fair, albeit imperfect, shot.  It’s hard to feel all that sorry for the bad guy who suffered some inconsequential flaw in his trial.

For this reason, we strive to find a way to present the issues on appeal that will strike the judges in such a way as to get them to think that this is a case worthy of their attention.  If we can get them to focus on our case, we’ve got half a chance.  At least, that’s what we believe.  It doesn’t mean we win, but we know we can’t win if the judges aren’t paying attention in the first place.

Despite all efforts, however, some appeals will lose.  By the numbers, the vast majority will lose.  And this blow is crushing for defendants and their families, as it represents their last chance at getting out from under the conviction. 

Norm Pattis  posts about the talk that comes after the losing decision.  No matter how good a lawyer you are, you will get this telephone call at one point or another.


What could be done for a client whose murder conviction was just upheld on appeal? The client is angry. Wants to know what comes next. Wants a visit. Wants to know why we raised losing issues, rather than the winners he knows all about. When does he get a new trial? When is he going home? You get the drill.

Few things more squarely frame the job then this talk.  Defendants hire criminal defense lawyers to win their freedom.  When the lawyer fails to accomplish that goal, it’s because the lawyer failed.  That’s just the way it goes.  Lawyers are viewed like plumbers, expected to fix the leak that they were hired to fix.  No one wants to hear why the plumber can’t fix the leak, and no one need a plumber who can’t do his job.

Unfortunately, lawyers aren’t like plumbers and we can’t fix every leak.  In other times and under other circumstances, clients understand this.  But when it’s their last hope for freedom, they don’t tend to focus on the lawyer’s issues but on their own.  This isn’t too hard to understand.

This is a common source of discord between lawyer and client.  The lawyer may feel that he’s worked his butt off, done everything possible and then some, to help his client.  But at the end of the day, he was unable to obtain the desired result.  To the lawyer, his work his personal.  He put his heart and soul into it, because his self-worth is on the line with every case he fights.  Clients think we fight because we love them, or because we are paid a lot of money.  Perhaps that’s true for some, but most lawyers fight to win because they are internally driven to do so.  It makes for some pretty strong motivation, far more so than love of the client.

And so, the lawyer gets annoyed, or worse, with the client who not only doesn’t appreciate the lawyer’s efforts, but blames the lawyer for losing the appeal.  The client remains absolutely certain that, based upon his vast legal experience in the prison law library, his case was not only a huge winner, but the court should have given him an apology to boot for all the heinous violations of his constitutional rights.  And if the client could have won the case, why didn’t you?

For the most part, my appellate practice has been remarkably successful, allowing me to avoid these talks.  This is largely a product of experience, in that I know the appellate judges from the old days when they sat on the trial bench, and they know me.  They take my appeals seriously, and I have a firm grasp of the types of arguments, and the strategies in presenting these arguments, that will at least capture their attention.  When I argue, they listen, and when they listen, there is a far better chance of prevailing.

But that doesn’t mean that I win them all.  Only Gerry Spence wins every time, according to him.  And when I lose, I face the music just like Norm, because I know two things: My client depended on me and I couldn’t fix the leak.  I know, criminal defense lawyers aren’t supermen and can’t fix everything.  But that doesn’t make the loss any easier.  For my client or me.