Panel addresses how civil and criminal appeals affect each other
When an appeal in a criminal case might mean a defendant's freedom, or even his life, do judges treat that case with more attention and interest than they might a civil case that “only” involves money and property?
 While that question elicited a unanimous and emphatic “no,” a three-member panel at an ABA Midyear Meeting program said there are some differences in how criminal and civil appeals are handled.
Although judges are bound by law to schedule criminal cases ahead of civil, “Do we treat cases differently? Absolutely not,” said Consuelo M. Callahan, a federal appeals judge in the 9th Circuit. “Civil cases tend to be harder. There are many types of civil cases, and judges are constantly learning new areas of the law.”
The program, “The Impact of Criminal and Civil Appeals on Each Other,” was co-hosted by the Council of Appellate Lawyers and the Council of Appellate Staff Attorneys, parts of the ABA Appellate Judges Conference. The other panelists were Gary M. Farmer, a state appellate judge in Florida's 4th District, and Elliot H. Scherker, an appellate lawyer in the Miami office of Greenberg Traurig.
The panel agreed that several factors have pressured lawyers to rely more on written briefs, and less on oral argument.
Lawsuits going to jury trial have diminished, but the appellate caseload has grown, they said, forcing courts to lessen time for oral arguments. In addition, rules changes limiting post-conviction appeals force defense lawyers to pack all potential issues into one appeal.
"Just getting oral argument in some courts is an achievement," said Scherker, adding that he avoids any claims that might undermine the credibility of his written briefs. "I see myself as being in service to the appellate judges. I try to give them everything I know, both the good and the bad."
The panel agreed that written briefs should cover all key issues, but Farmer said he has learned to respect the place of oral arguments. "Judges get fixed ideas, but I've found my opinion changes in about 5 to 10 percent of all oral arguments. You have to stay open to new ideas."
And Scherker said that in very rare cases, some appellate judges may give special attention to criminal appeals: when a fundamental error by the trial judge might merit a retrial. "The consequences of a misstep are so great that some appellate judges are more willing to grant some relief, if it goes to the heart of a case."
Back to top
© 2007 American Bar Association |
