Key Factors to Consider When Hiring an Appellate Lawyer

We are often asked, “When is the best time to hire an appellate attorney?” Understandably, many people want to wait until after a trial to see if they lose. 

This can be because a defendant wants to save money, not jinx losing at trial, or just not being able to think far enough ahead to consider what will happen if they lose at trial.

When you should hire an attorney can depend on many factors, including:

• Your financial situation – adding attorneys to a case can get expensive.
• Complexity of your case – if there are relatively few legal issues, and it is a straightforward “he said, she said” case that will hinge exclusively on factual grounds of who a jury believes, then the need for appellate counsel to be involved in the trial is less than cases that are hotly contested on legal grounds.
• The ability of your trial attorney to preserve issues for appeal – if your trial attorney has a lot of experience doing trial litigation and appellate litigation, waiting until after trial may be sufficient. 

Nevertheless, having someone on your team whose sole goal is to pay attention to objections and build a record can potentially save you a lot of time in jail.

Why Hire An Appellate Attorney Before Your Case Goes To Trial?

Many attorneys are very good at trial. But just because someone is a good trial attorney, can talk effectively to a jury, and knows how to introduce evidence does NOT mean they know how to litigate a case and preserve issues for appeal properly.

By hiring an attorney familiar with the appellate process before trial, you can help develop a legal strategy that does not put all your eggs in one basket––the jury. 

Sometimes, judges and juries get it wrong. That is what appeals courts are therefore to review the trial record and correct legal errors.

However, if there are no properly filed motions or timely objections to crucial pieces of evidence, you may have waived all rights to challenge that evidence later.

Objections are sometimes considered a “use it or lose it right.” If the trial court was never asked to specifically look at an issue or knows that you object to something, there is technically no “incorrect ruling” for the Court of Appeals to review.

This is called the contemporaneous objection rule and may be responsible for more innocent people in jail than any other rule. In other words, because some trial attorneys do not object timely, their clients may spend time in jail they otherwise should not have served.

This means it is vital to your case and your freedom to have someone on your team that understands the appellate process and how to preserve issues for appeal.

Chad Ikerd has often consulted with trial attorneys on developing a strategy before trial to litigate crucial legal issues. 

This can be developing a motions practice to pre-litigate issues with motions to suppress or quash, to get pretrial rulings from the court that can be litigated early to the Court of Appeals through the supervisory writ process. 

Other examples include developing a trial strategy for handling voir dire objections, trial objections, evidentiary objections, and sentencing objections.

Example Of How We Have Helped When Hired Early Enough In The Process

Recently, the Ikerd Law Firm was hired to handle an appeal after a conviction and sentence were imposed, but before a motion for appeal was filed. 

Immediately, Chad Ikerd realized there were several issues with the sentence that were not objected to at sentencing. To make sure the client had every issue available for appeal, we filed a motion to reconsider the sentence that laid out numerous issues the trial court did not fully consider at the first sentencing hearing.

The trial court granted a new hearing on the motion to reconsider. At the hearing, the trial court amended the original sentence, removing a restriction on the client earning good time credit.

If the Ikerd Law Firm had not been hired early enough in the process, this issue may have been abandoned and the client would have served “flat time” in the Department of Corrections (DOC) custody.

The timing was everything!

Lost Your Trial? Now What?

 You have spent years waiting for trial and when it finally arrived, you lost. Now what?

 Under both the Louisiana Constitution and the United States Constitution, you have an absolute right to appeal your case to a higher appellate court. In Louisiana, there are five appellate circuits. Each Circuit covers a geographic area of the State; see map here. 

Each Circuit generally follows the same rules, but they all have special procedures an experienced appellate attorney can help you navigate.

 The first thing you need to do if you lose a trial or receive an excessive sentence is make sure your trial attorney knows how to preserve legal issues to appeal later. 

Many criminal defendants mistakenly believe if they lose at trial, they will “get it back on appeal.” This is very rarely the case, unless there is an effort to preserve and assign errors to the trial court’s rulings. Without an objection, there is almost no guarantee an appellate court will, or even can, review and reverse a ruling.

 There are certain motions you must file after trial to preserve issues for appeal, particularly when it comes to excessive sentencing. If those motions are not filed, you CANNOT raise some issues on appeal.

 After crucial post-trial motions (new trial, post-judgment verdict of acquittal, motion to reconsider sentence) are filed and heard by the trial court, you or your attorney must file a motion to appeal your conviction and/or sentence to the appropriate court of appeal. 

You only have 30 days from the date of your sentence, or the date your motion to reconsider sentence was denied, to file this motion. 

If you miss the deadline, there may be other options to get your right to an appeal back, but the best practice is to file the appeal immediately after all issues related to your sentence are final.

Possible Outcomes When Appealing a Conviction

The possible outcomes that can result in appealing a conviction or sentence in Louisiana depend on what relief you are asking for and what issues are raised. 

Except when the Courts of Appeal find an “error patent,” the appellate courts of Louisiana will ONLY address issues the parties specifically ask to be reviewed. In other words, they will only review issues that were objected to at the trial court and raised as assignments of error on appeal.

Generally, however, the following outcomes may be available, depending upon the facts of your case, in addition to your conviction being upheld, the appellate courts may rule in your favor by:

Reversal of Conviction

Acquittal (“not guilty” verdict entered)

If the State failed to “sufficiently” prove every element of the crime you were convicted of, your conviction should be reversed and remanded.

Remand for New Trial

Sometimes the Court of Appeals may reverse a conviction and remand the case for a new trial when there was an incorrect legal ruling by the trial court. In theory, the new trial should be free of the legally incorrect ruling, thus making it a “fair trial.”

This can occur when the trial court makes an error in ruling on evidentiary issues, jury selection, statements regarding the law, etc. Trial Courts are given a lot of discretion in making some judgments that call for the credibility of a witness to be factored in, but sometimes abuses of that discretion can lead to a new trial as well.

Conviction Amended – Finding of Guilt to a Lesser Included Offense

If the evidence was not sufficient to prove every element of the crime you were convicted of, an acquittal may not be justified if the State proved all the elements of a lesser included crime. This can occur, for example, when someone is convicted of armed robbery, but there was never any evidence a weapon was involved in the robbery.

Instead of acquitting the defendant completely, the Court of Appeals may reduce the charge to the lesser version of that offense, such as simple robbery, which does not require the use of a weapon to be proven. The Court of Appeals may then remand the case for new sentencing on the lesser charge.

Reverse Excessive Sentence

Constitutional

When a trial court sentences someone to a “maximum possible sentence” for any crime, there may be an argument to make that the defendant was not the “worst of the worst,” for which maximum sentences are reserved.

Statutory 

Under Louisiana law, there are certain factors a trial court should expressly consider on the record, including aggravating and mitigating facts. See La. Code of Criminal Procedure art. 894.1. Crucially, if your trial attorney does not object and file a motion to reconsider pointing out how the trial court did not properly consider these statutory factors, you will NOT be able to raise this objection on appeal.

Remand for Further Hearing

Generally, the Courts of Appeal in Louisiana will only address issues that have been fully litigated and objected to in the trial court. Since the appellate judges were not present when the issues were raised, they can only address issues in the appellate record.

However, on rare occasions, the Court of Appeals will decide to hold off ruling on an issue and remand the case to the trial court so a better/new record can be built on that topic. Once that has been done, the Court of Appeals can then issue a ruling. Again, this is very rare. 

Ineffective Assistance of Counsel

Typically, Courts of Appeal do not want to rule on Ineffective Assistance of Counsel (IAC) claims on direct appeal. That is because it is rare that a full record will exist to allow the Court to make a determination of whether the trial attorney’s actions were both deficient and prejudicial to the defendant, as required by Strickland v. Washington.

Not every bad decision by a trial attorney is ineffective. Sometimes, attorneys make strategic choices to do or not do something at trial.

When that is the case, the attorney may not be ineffective, even if the outcome is bad for the client. Oftentimes, a Court of Appeals will not address IAC claims on direct appeal and let those issues be raised later in another proceeding, called a Post-Conviction Relief application.

Jurisdictions the Ikerd Law Firm is Barred In and Has Practiced Before

Chad Ikerd is barred in the following jurisdictions:

State:

1. Louisiana – all courts (district courts and courts of appeal, including the Supreme Court of Louisiana)
2. Texas – all courts (district courts and courts of appeal, including the Supreme Court of Texas and the Court of Criminal Appeals)

Federal:

1. Supreme Court of the United States
2. Courts of Appeal – U.S. Fifth Circuit
3. District Courts of Louisiana
   
   1. Western District
   2. Middle District
   3. Eastern District

Proven Appellate Criminal Defense Attorney — Louisiana, Texas, Federal Court

 Have you been wrongly convicted of a crime in Louisiana you did not commit? Has a crucial ruling by the trial judge caused you to be convicted because inadmissible evidence was shown to the jury at your trial or you lost a motion to suppress hearing?

 You need to contact Chad Ikerd and the Ikerd Law Firm, LLC immediately for a free consultation. He has over a decade of experience in appellate litigation in courts throughout Louisiana, primarily in criminal defense appeals. 

 We have extensive experience litigating criminal appeals in every jurisdiction in Louisiana, but most specifically in the Second and Third Circuit Courts of Appeal, which covers nearly all of Louisiana west of the Mississippi River.

 If you need vigorous criminal appeal representation in one of the Louisiana Appellate Courts, Texas Appellate Courts, the U.S. Fifth Circuit, or even the U.S. Supreme Court, do not wait, contact the Ikerd Law Firm, LLC today!