Despite the depressing odds against you, there are times in an appellate lawyer’s career when you have no choice but to file in the hope that you can grab victory from the jaws of defeat. This can occur at trial where you need immediate appellate intervention (interlocutory or emergent appeals), and it may happen where the appellate court’s opinion is simply in error (petition for rehearing). The purpose of this article is to lay out the parameters of what the appellate court may recognize if you’re able to grab their attention.
Frame the Issue
The one constant to each of these desperate appellate measures is that you must first and foremost frame the issue if you intend to have a prayer for success. It is the exceedingly rare case where the issue just jumps off the page—consider carefully how your case affects the entire legal system. Your case is likely important only to you, but the legal issue may impact the entire legal system. Before discussing the raw materials needed for a successful interlocutory or emergent appeal, or for a petition for rehearing, one element is absolutely necessary for success—distill the issue to its essence and state it powerfully.
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