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An Interview With a Criminal Appellate Lawyer

Sometimes things may not go as planned in the trial court. Maybe the jury didn’t see things the way you had hoped, or maybe there is a change in the law in the course of a case or after conviction. Maybe your trial lawyer forgot something or made a mistake. The remedy may come from a consultation with an appellate lawyer.

I recently had an opportunity to speak with appellate lawyer Anthony D. Z. Tony was kind enough to have answered a few questions about his practice. I have summarized his answers and added a few comments to aid in the reader’s understanding of this complex area of law.

Tell me about Yourself

“I have been practicing law for over 16 years. My practice is mainly appellate and post-conviction. I have been working on appeals since before I got out of law school.”

In fact, I first got to know Tony when he was working as my law clerk shortly before he finished law school. He helped write a writ of habeas corpus on a murder-for-hire conviction. To this day I will never forget the words of the deputy attorney general when he got the writ. He said, “That was one heck of writ you filed”. And, this was before Tony even had a license.

How Did You Get Started Doing Appellate Work?

“My evolution into appellate work was two-fold. On one hand I always had an interest in shaping the law. Appellate work is the avenue for that pursuit. Secondly, appellate work came to me by default because nobody else seemed to want to do it. Unless you are veteran at handling appeals, they can be very intimidating and cumbersome. Like most things, however, after becoming practiced in the area, one is able to break down the process and make it manageable.”

“Appellate work can be gratifying in the sense that, at the end of the process, you have something that has been created. This is a benefit to clients. Specifically, when we have a written opinion by the judge laying out exactly how the judge reached his or her opinion, this helps when it comes to explaining to a client how the court came to its decision.”

“Lastly, I’ve always been kind of a recluse. I feel that I do my best work alone. I choose to handle all aspects of my cases personally. I rarely delegate a task. So, locking myself in my office with books is actually a pretty good fit for me. In my career I have handled well over 100 appeals and post-conviction matters. It just works for me.”

What is a typical Case for You?

“A typical case for me is patching things back together after the client is finished with the trial and is often out of money. I have become very resourceful and efficient in dealing with the patchwork and generally being ‘the fixer.’ Rarely do I get a clean situation with a properly preserved record for review on appeal. There is often a lot of cleanup work to do.”

Trial lawyers are concerned with trial. This is to say that they are dealing with what is going on in the moment. If there is a witness on the stand, we have to ask him questions, make objections, and get ready for the next witness. It is difficult to do this, and at the say time, be thinking about the record for a potential appeal. After all, we normally don’t appeal when we win.

How Much of Your Practice is Criminal and How Much is Civil?

“The mainstay of my practice is criminal appellate and post-conviction work. I do a lot of state and federal habeas work. Federal habeas corpus petitions have become very complex in terms of procedure. Overall, my case load is about 30% civil and 70% criminal. Technically, habeas corpus work is civil. But, I tally habeas work on the criminal side as it ultimately relates to an underlying criminal conviction.”

When Should a Potential Client be Calling You?

“Any potential client should be calling in the course of the trial phase — especially if it is a very serious or complex case. Associating appellate counsel in the trial court is always a good idea. Appellate counsel will make sure that the record is properly preserved and will anticipate procedural hurdles. As an aside, the law is so preoccupied with procedure that it takes tremendous effort to even get to the substantive issues. So, it’s critical to engage appellate counsel as soon as possible.”

“Appeals and post-conviction proceedings are exceedingly complex. Even lawyers have problems grasping the legal issues that are involved. If the trial lawyer and the client are willing to work with me in understanding the process, this is a very good start.”

How do Appellate Lawyers Get Paid?

“I normally work out a flat or compartmentalized fee with the client. The fee for an appeal is based on three things: (1) the size of the record (transcript); (2) the complexity of the issues; and, (3) the foreseeable post-judgment proceedings after appeal. This applies to both civil and criminal appeals. I never base my fees on the ‘seriousness’ of the case. This is because the seriousness of the case is always relative to the client.”

What is a Typical Day for You?

“A typical day for me is often spent hunting, hiking or fly fishing until about 11:00 a.m. Normally, I’m mulling over some issue in my head while I’m out doing that. Then, around noon to early afternoon, I begin writing, answering client inquiries and researching. Then, I typically work until about 10:00 p.m. As of late, I insist on taking weekends off. However, from time to time, I will have a number of deadlines that hit all at once. My work load ebbs and flows in that way.”

What Does Being An Appellate Lawyer Mean to You?

“Becoming an appellate lawyer was a long process. It changed the way I look at, and treat, lower (trial) court proceedings. Some years ago I began to speak the ‘appellate lawyer speak’ both in trial court and in appellate argument. I now understand very clearly that formulating an appeal is very different than arguing an issue at trial. We do not simply re-try the case in the appellate court. Being an appellate lawyer means learning to identify the legal issues involved in each appeal. I must search through an often voluminous trial transcript and root out the legal issues which are in error and then explain to the appellate justices why the trial court was wrong and why the appellate court must right these wrongs. This is a difficult task in that it involves convincing higher court judges that their friends and former co-workers in the trial courts made mistakes. I love my job!”

Anthony Z. is an appellate and post-conviction attorney who works in Los Angeles County. His main office is in Valencia, California.

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