Common Mistakes for Attorneys in Indigent Criminal Appeals

Good Morning

I do not want to be too elementary this morning, but in fact, the details of how you practice in the Court of Appeals are very important to your success. Today, I will explain some of the more common mistakes, but hope that you will have questions for me as well. I prefer to speak about how you can improve your work rather than your mistakes and I will take both tacks in this presentation. So, as a example of the dark side, you goal is not to be a stick man or woman.

E-FILING

I would like to start with mistakes made in our e-filing system. E-filing began in the COA December 2009. Cindy Wang of the Council submitted our first test documents. In the last twelve months we have had over 5000 e-filing.

How many of you have filed an appeal with the Court of Appeals?

How many of you have e-filed with the Court of Appeals?

The current COA e-filing system is limited to a small set of documents, but sometime this year our Court like the Supreme Court will have updated its case management system to permit most documents to be e-filed.

MISTAKE ONE - PASSWORD

Imagine it is the last day for filing your brief and it is after 4:30 p.m. , you cannot remember or find your password, what should you do. First, if you remember your answers to your challenge questions, reset your password. (It is a good policy to have a secure location for your password and answers to your challenge questions.) Send an assistance request through COAEfast. We cannot reset your password to a temporary password until the next day, but it will be done right away the next day. If you have contacted us, the Court will not punish you for a day late.

MISTAKE TWO -profile

You not only forgot your password, but you did not update your profile recently. Do not fail to update your address, email addresses and telephone number in your COA Efast profile. Otherwise, you will not be able to see opposing counsels filings, receive filing notices or receive electronic orders. We can send your filing notices and court orders to only two email addresses, so please make sure that if you want the notices and orders to go to others in your office to arrange with your own office to make sure those notices and orders reach the proper destinations.

SIGNATURE

Oh my, it is just not your day. You did not sign your document in conformance with the instructions for e-filing. Please follow, specifically, the conformed signature style in the instructions for e-filing on our web page for submitting your signature. Otherwise, your document will be rejected.

Also, make sure that the case style and case number on your e- filing are correct. With word processing many times prior documents are used as templates for new filings and the identifying data is not changed as it should be. These mistakes may result in your document being rejected or docketed to the wrong cases.

AFFIDAVIT

You submitted your brief, but forgot to submit an affidavit of indigency. Please make sure to submit a pauper's affidavit or your appointment as appellate counsel prior to filing your appellant's brief. We do not want to reject your brief, but we may do so if your pauper's affidavit or appointment of counsel is not received by us in a timely manner. If you believe a pauper's affidavit was in the trial court record already received by us, check with us to make sure it has been logged into the system before submitting your brief without a pauper's affidavit or appointment of counsel.

Choice of Filing Type

You log on to E-Fast to file a motion to reschedule oral argument. You see a request to argue can be e-filed, but do not see a choice of a motion to reschedule. You choose a motion to request to argue and attach your motion to reschedule oral argument. Please note that if you do this, your e-filing will be rejected. Another example of a similar mistake is to file your brief, for instance, and forget to attach the certificate of service so you e-file your certificate of service under the category of a brief. Your certificate of service will be rejected. If you leave something out of your filing and notice it before we docket the document, just e-file the complete document again and telephone us or email us so we will know to reject the defective document and accept the corrected one. If the item is docketed, you can send an amended brief or document, but make sure the title of the document indicates that it is an amended brief. Do not just e-file the page that is corrected.

In submitting a motion for permission to file a supplemental brief you can include in the document a copy of the brief to be submitted as an exhibit. When sent, the brief should be labeled as an exhibit and be included as one document with the motion. Once the motion is granted, you should e-file an original copy of the brief.

UPLOAD

Another common mistake is to upload your .pdf document to e-file and forget to afterwards click the submit button. We will not receive and docket your filing.

After you receive the first email that your document is received, remember to check for the second email from COA Efast which informs you whether your document was docketed or was rejected.

Filing Deadlines and Motions

Most important deadline is for MFR which must be physically filed within 10 days of order or opinion. It is the only variance from the postmark or transmittal date rule.

Joint motions or alternative motions are prohibited. If you have the consent of the opposing party to your motion. Filing the motion on behalf of the appellant and just state you have the opposing side's consent. You do not need the opposing side's signature on the motion.

RECORDS

Importance of complete record

As you know, the appellant is responsible to ensure all parts of records to be considered are filed by trial court with COA. Counsel should visit the Court if possible to make sure the record in the COA is complete. This is important to do so you citations to the record will be accurate and to eliminate disputes about the record that may delay the case decision. The citations in your brief should match the record filed with the COA. If there is a small record and it is numbered sequentially throughout you need only the page number if there are many volumes, the volume number is important to the Court.

If part of the record is missing contacting the lower court may be more time efficient than filing a motion to supplement the record in this Court. Check with the lower court clerk to see if he or she will send the supplemental record or transcript without an order. If a motion is required, make sure to file a separate motion for extension for appellant's brief if an extension is needed.

CDs, DVDs

Make sure that the trial court clerk sends CD and DVD exhibits that were made a part of the record such as a videotape of the incident or interviews of your client or witnesses.

Remand

If there will be delay in obtaining the supplemental record, the COA may remand the case. If the appeal is remanded this order acts as a disposition of the case, and once the record is complete the case will start again with a new docketing notice (including a new docket number) upon receipt of the proper record or transcript by our office from the trial court clerk.

The Court may also remand in other instances, for example, for the trial court to hold a hearing on ineffective counsel, to have the trial judge enter findings of fact and conclusions of law. Generally, when the remand results in a new order or action by the trial court judge, you will be required to file a new Notice of Appeal to bring the case back to this Court. Also, if you expect the trial court may require a significant amount of time to schedule your hearing, it would be best to place a hold on the record.

Related Cases

One record - duplication to be avoided but you must inform the court of the location of the record.

Paper filings - length and format

You have 10 extra pages in your brief and just don't know what to cut. So instead you reduce the font or the margins to make the page limit. Obvious disregard of the rules may result in the Court deciding not to consider your submission or in ordering you to recast your document. To be successful, please make sure that you or your administrative assistant follows the COA rules regarding document format. (14 pt, single-sided, double-spaced, proper margins) These rules are in place to make your documents easy to read and to permit the judges to locate authority for your claims quickly.

Exhibits

Many times exhibits are submitted with briefs or motions that are not needed. Exhibits do not need to be attached to your documents if they are in the trial court record sent to the Court. Instead, you should reference the record. If you cannot visit COA to see the record, you should check the copy of the record prepared by the trial court. Also, please note the COA cannot consider documents not a part of the trial court record below in determining the case.

ORAL ARGUMENT

An extension for appellant's brief does not result in an extension in time to file a request for oral argument.

Although the actual argument is generally the province of the judges, would like to tell you about some of the mistakes I have observed.

Time

At check in you choose only 10 minutes for your argument. After you begin to speak, the judges ask a number of questions which results in time running out before you cover all of your points. You should always ask for the full time, 15 minutes, for your argument. This is important since you cannot know how much of your time will be taken answering the judges questions. You will not be punished for using less than your full time.

Focus

Do not try to cover the waterfront in your argument. Instead, focus on your strongest arguments.

Give direct, concise answers to the judges' questions. Do not evade or postpone answering the questions

Technology

You choose to use a computer presentation as a part of your oral argument. The judges interrupt your presentation with questions making the order of your presentation awkward. You do not need too much technology. The document camera (ELMO) can be useful in highlighting particular facts or citations. Unless you are very comfortable with your digital devices, PowerPoint or other computer presentations are not necessary and may actually be less successfully used than just speaking.

Know you record backwards and forwards. On the other hand, if you cannot remember a citation on an important issue do not be afraid to ask permission to submit a short supplemental brief on the subject. Although the judges may say yes or no, you have not lost anything by asking.

Prepare a good opening and structure your argument. Do not wander.

Summary

Be fully prepared. Proofread, proofread, proofread. Know the rules as well or better than your administrative assistant..

E-file when you can. You will find it easy and more efficient - time of filing- and you will be able to correct any deficiencies more quickly.

CHANGES IN THE WORKS

Already mentioned broadening of e-filings and electronic courts actions this year.

Drop box if you have used it, it has moved.

Check web site announcements.

QUESTIONS:

I have also provided you a handout of thirty tips which will be useful in your practice in the Court of Appeals.

Happy to answer your questions when you visit our Court or questions can be emailed to Ask the Clerk or COA Efast Assistance.