Category: Practice

The Cumulative Error Doctrine in Colorado Appeals

The first step in a direct appeal is to ask the court of appeals to provide relief for specific legal errors made at the trial level. But sometimes, the trial court made only a series of smaller errors, rather than a severe error that would alone warrant reversal. In these cases, the cumulative error doctrine may be of help in finding relief.

The court of appeals considers de novo whether the cumulative effect of multiple errors at trial requires reversal, even if any one of those errors individually may not warrant relief. Kogan v. People, 756 P.2d 945, 961 (Colo. 1988), abrogated on other grounds by Erickson v. People, 951 P.2d 919 (Colo. 1998). Under a cumulative error analysis, “regardless of whether any error was preserved or unpreserved . . . reversal is warranted when numerous errors in the aggregate show the absence of a fair trial, even if individually the errors were harmless or did not affect the defendant’s substantial rights.” Howard-Walker v. People, 443 P.3d 1007, 1011-1012 (Colo. 2019).

In Colorado, the cumulative error doctrine has only been applied in criminal appeals. The court of appeals has thus far declined to extend the doctrine to civil cases. Neher v. Neher, 402 P.3d 1030 (Colo. App. 2015) (holding the court “decline[s] to extend [the cumulative error doctrine] to civil cases.”)

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for a free consultation.

What Materials Do Appellate Attorneys Rely On?

Whether you privately retain an appellate attorney or are appointed one by the court, one of the first things your appellate attorney will request is the entire case file. Many people are surprised to find that it can cost hundreds of dollars to obtain all documents in a case file. This often prompts individuals to wonder, what does an appellate attorney really need? In short, the answer is usually everything.

Appellate attorneys review cases to determine whether there are grounds for appeal – such as errors made by an attorney, the judge, or the jury – from which to request post-conviction relief. In order to find every potential issue, the attorney must review the entire record. This includes:

• The full court record, including all pleadings, minutes, and orders,
• The full trial attorney file, including discovery, notes, correspondence, and documentation related to past convictions (if any), and
• Transcripts of every hearing that was recorded, such as pretrial, plea, sentencing, and trial hearings.

Each of these items carry their own significance. For example, pleadings contained in the court file reveal what issues existed at the trial level, and how they were resolved. Additionally, if there was a trial, the trial transcripts reveal important details such as what objections were made and how they were handled.

These materials are vital to an appeal because appeals are based completely on the record. Every fact within an appeal must have a corresponding citation to a document in the record. Except in limited circumstances, appellate courts will not consider new witnesses or new evidence.

Additionally, appellate attorneys often discuss the case with the trial level attorney, as well. These conversations are important because the trial level attorney will likely already have ideas as to what issues there may be for appeal.

Perhaps most importantly, appellate attorneys rely on conversations with you, the client. Conversations with the client inform the attorney of what the goal of appellate representation should be, and provide important insight and details on the case.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

But What do I Win? Remedies on Appeal in Criminal Cases

In the majority of criminal cases, a successful appeal or post-conviction motion is not the end of a criminal case. In fact, most post-conviction motions and appeals request specific relief that prolongs the case further, such as a new trial, a new sentencing hearing, or the withdrawal of a plea and the opportunity to go to trial. Following is a discussion of some potential outcomes of a successful post-conviction motion or appeal.

New Trial

If the reviewing court orders a new trial, the defendant is put in the same position he was in prior to the start of the original trial. The State may attempt to negotiate a plea bargain to avoid a second trial, however it is not required to do so. When requesting a new trial, it is important for the defendant to consider that vacated charges will be reinstated. Further, there is a possibility that he will receive the same convictions – or more – and/or a harsher sentence (assuming he did not receive a maximum sentence on all charged counts in the initial trial).

Re-Sentencing

If the reviewing court affirms a conviction but finds issue with the sentence, it may vacate the sentence and order re-sentencing. This can happen in a variety of situations, such as where the reviewing court determines that a sentence is unreasonable, the sentencing court considered incorrect information, or where the sentence falls outside of statutory sentencing guidelines. An order for re-sentencing puts the defendant back in the position he was in immediately following the criminal conviction, so the defendant can receive any sentence authorized by law.

Vacating the Plea

Where a defendant is successful in arguing that he should be permitted to withdraw his plea, the reviewing court can order that the plea be vacated. This puts the defendant in the same position he was in prior to accepting the plea. As with an order for a new trial, the State may attempt to negotiate a plea bargain, but is not required to do so. If a new plea bargain is not reached, the case will proceed to trial. As with a new trial or re-sentencing, the defendant can receive any sentence which was authorized by law at the point before the plea was entered.

While these are common remedies after a successful post-conviction motion or appeal, they are not the only remedies available.  To speak with a knowledgeable attorney about your post-conviction options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

How a Case Gets to the Wisconsin Supreme Court

This article was authored by our managing attorney Kimberly Alderman and recently published in the Bi-Weekly Newsletter of the State Bar of Wisconsin. To read the full article including endnotes, click here.

The majority of requests for review to the Wisconsin Supreme Court take the form of a petition for review, filed shortly after the final disposition of a case in the Wisconsin Court of Appeals. However, there are three additional, less used vehicles through which the supreme court may exercise jurisdiction over a case: 1) petition for bypass, 2) certification by the court of appeals, and 3) original jurisdiction. This article provides a primer on the four paths cases may take to get to the supreme court, each of which is available in limited situations.

Petitions for Review

The most common way for a case to get before the supreme court is through a petition for review following a loss in the court of appeals. Petitions for review ask the supreme court to exercise its discretionary review on a particular case.

Importantly, the supreme court will not take a case simply because the matter was incorrectly decided or justice was not done in the lower courts. Rather, the supreme court will consider whether:

“(a) A real and significant question of federal or state constitutional law is presented.

(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.

(c) A decision by the supreme court will help develop, clarify or harmonize the law, and

a. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or

b. The question presented is a novel one, the resolution of which will have statewide impact; or

c. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.

(d) The court of appeals’ decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals’ decisions.

(e) The court of appeals’ decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination.”

A petition for review must be filed within 30 days of the adverse decision in the court of appeals. This deadline cannot be extended. If the opposing party wishes to respond to the petition for review, it has 14 days (plus three days for mailing) from the date that the petition was filed to do so. The time it takes for the supreme court to issue a decision granting or denying review will vary depending on the supreme court’s schedule.

Petition for Bypass

In limited circumstances, a party may petition the supreme court for direct review of a matter already briefed in, but not yet decided by, the court of appeals. A matter is appropriate for bypass when it meets one or more of the criteria for review outlined in Wis. Stat. section 809.62 , as reproduced above. Additionally, the supreme court must determine that the issue is one it would have selected for review regardless of the outcome in the court of appeals. Finally, petitions for bypass may be granted when the supreme court determines that there is a need to hasten the appellate process.

A petition for bypass must contain a statement of reasons for bypassing the court of appeals. It must be filed no later than 14 days following the filing of the respondent’s brief. The opposing party may file a response to the petition to bypass within 14 days after the service of the petition.

The filing of the petition for bypass stays proceedings in the court of appeals, preventing that court from taking under submission the appeal. If the petition is denied, the original appeal to the court of appeals will continue as though the petition to bypass had never been filed.

Certification by the Court of Appeals

If the court of appeals believes that a particular case presents a question of law that belongs before the supreme court, it may certify an appeal to the supreme court. Certification means the court of appeals, instead of issuing its own ruling, asks the supreme court to take the case directly because the case presents a question of law that belongs before the highest state court.

A recent example of certification by the court of appeals occurred in Madison Teachers Inc. v. Scott Walker (appeal no. 2012-AP-2067). In this case, the court of appeals certified an appeal to the supreme court “because of its sweeping statewide effect on public employers, public employees, and taxpayers and because of the need to clarify and develop law relating to associational rights and the home-rule authority of municipalities.”

A certification by the court of appeals will be considered using the same criteria as a petition for review or bypass. Importantly, bypass will be attractive to the supreme court when there is a demonstrated need to quicken the appellate process, existing precedent on the issue is scant or conflicting, or the justices determine they will want to consider the issue, regardless of how the court of appeals ultimately rules. For the supreme court to consider an issue on certification, at least four justices must agree to hear it.

Original Jurisdiction

Finally, a party may move to commence an original action in front of the supreme court under original jurisdiction. “The concept of original jurisdiction allows cases involving matters of great public importance to be commenced in the supreme court in the first instance.”

Importantly, the supreme court is not a fact-finding body. Therefore, it will not take cases that involve disputes of fact. Rather, all parties to the action must agree on the facts that the court will consider.

A petition for the supreme court to take jurisdiction of an original action must include:

“(a) A statement of the issues presented by the controversy.

(b) A statement of the facts necessary to an understanding of the issues.

(c) A statement of the relief sought.

(d) A statement of the reasons why the court should take jurisdiction.”

A recent example of an action for original jurisdiction in the supreme court occurred in State ex rel. Ismael R. Ozanne v. Fitzgerald. In this case, the supreme court exercised original jurisdiction in order to determine whether the Wisconsin Legislature acted unconstitutionally when it enacted 2011 Wisconsin Act 10. The court granted the petition for original jurisdiction after determining that a lower court “usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature.”

To exercise original jurisdiction, at least four justices must agree to hear the case. In contrast to petitions for bypass and certifications, the criteria for granting original jurisdiction are not statutory, and are less clearly defined.

If the supreme court does not deny the petition outright, it may order the respondent to file a responsive brief. The response will be due within 14 days of service of the order (rather than service of the petition). Additionally, the court may require an oral argument on the issue of taking original jurisdiction. Should the court decide to take original jurisdiction, it will establish a briefing schedule, and may or may not request oral argument on the issue to be decided.

Considerations for Appellate Attorneys

The Wisconsin Supreme Court hears very few cases regardless of which of these jurisdictional paths is pursued. The cases it does hear tend to be those that trigger its institutional responsibilities, rather than those in which justice may not have been done in a lower court. With a working knowledge of the four ways by which a case can come before this state’s highest court, an appellate attorney can quickly identify cases appropriate for high court review and more effectively advise clients on appellate options.

Alderman Argues Before the Wisconsin Supreme Court

On December 9, 2014, managing attorney Kimberly Alderman argued in front of the Wisconsin Supreme Court on behalf of defendant-petitioner in State v. Eddie Lee Anthony. The primary issue was whether Anthony’s refusal to comply with an order to not mention his unrelated 1966 conviction was sufficient disruption to justify the court’s stripping him of the right to testify in his own defense. To see these lively high court arguments and Attorney Alderman in action, click here and then on the little TV: http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?evhdid=9407

It may be some time before the decision is released, particularly if the Court chooses to wait until the US Supreme Court issues a decision on the petition for certiorari in a related case, State v. Nelson.

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What is a ‘final judgment or order’ for the purposes of appeal?

This article was authored by our managing attorney Kimberly Alderman and recently published in the Wisconsin Law Journal.

Wisconsin statutes are clear that a final judgment or order is appealable as a matter of right, unless an exception applies.

So the Court of Appeals is required to consider a losing party’s request for review of a final judgment or order. Meanwhile, a losing party may appeal a nonfinal order only if the Court of Appeals first grants him or her leave to do so. Wis. Stat. § 808.4(2).

So, what is a final judgment or order for the purpose of appeal? Put another way, when does a losing party have the right to appeal, and when must he or she first seek permission to do so?

A final judgment or order “disposes of the entire matter in litigation as to one or more of the parties.” Wis. Stat. § 808.03(1). A court disposes of a matter by way of explicit statements on the judgment or order that the adjudication is final. Wambolt v. Illinois Farmers Insurance Company, 2007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670. Often, circuit court judgments conclude with words akin to, “This order is final for purposes of appeal.” These words are not necessary for an order to qualify, however.

In order for the court to dispose of the “entire matter,” the order must meet two requirements. Harder v. Pfitzinger, 2004 WI 102, ¶12, 274 Wis. 2d 324, 682 N.W.2d 398. First, it must resolve all the substantive issues between the parties in the case. Id. Second, the order must be the final document the court intended to issue in the case. Id.

In Fredrick v. City of Janesville, 92 Wis. 2d 685, 285 N.W. 2d 655 (1979), the Wisconsin Supreme Court further explained:

“The test of finality is not what later happened in the case but rather, whether the trial court contemplated the document to be a final judgment or order at the time it was entered. This must be established by looking at the document itself, not to subsequent events.

Similarly, in Wick v. Mueller, 105 Wis. 2d 191, 313 N.W.2d 799 (1982), the state Supreme Court held that an order for a new trial was not final and, thus, could not be appealed as of right. The appellate courts do not wish to interrupt the operation of circuit court proceedings or to consider “piecemeal appeals from interlocutory orders.” Id.

On the other hand, in ACLU v. Thompson, 155 Wis. 2d 442, 455 N.W.2d 268 (Ct. App. 1990), a judgment on the merits in a federal civil rights action was final for the purpose of appeal, even though the plaintiff’s § 1983 claim for attorney’s fees remained unresolved. Similarly, in Laube v. City of Owen, 209 Wis. 2d 12, 561 N.W.2d 785 (Ct. App. 1997), the court held that an order on the merits in a condemnation action was final, even though a party’s statutory request for litigation expenses was still pending.

The rationale is that the trial result is “uniquely separable” from the issue as to attorneys fees and expenses. Northwest Wholesale Lumber, Inc. v. Anderson, 191 Wis.2d 278, 528 N.W.2d 502 (Wis. App., 1995).

In order to be considered final, the judgment or order also must be recorded. For standard circuit court cases, recording occurs by entry of the order in the office of the clerk of courts. Wis. Stat. § 808.03(1)(a). Final judgments or orders in small claims, traffic or municipal ordinance violation cases may be recorded via corresponding docket entries. Wis. Stat. § 808.03(1)(b), (c), and (d).

As a practical matter, a trial attorney should carefully review a final judgment or order for any remaining actions that may need to be taken by the court. If substitutive issues remain, the judgment or order might not be considered final upon closer inspection, even if so designated.

Similarly, when a court issues a spate of orders, such as when considering cross dispositive motions or deciding fact and law separately, it is critical to be able to identify which of the orders is the final order (or, in some cases, the first final order), in order to be able to accurately assess the deadline to file a notice of appeal.{ http://wislawjournal.com/2013/10/28/what-to-do-when-you-lose-at-circuit-court/}

In some instances, it may be necessary to request that the court clarify its holding in order to resolve any lingering substantive or procedural issues and thereby reduce the number of possible issues on appeal.

How Can I Get an Extension of Time to Appeal?

Whether you are a pro se litigant or a seasoned appellate attorney, the nature of appellate briefing often necessitates asking the court for at least one deadline extension. Luckily, most Appellate Courts have a procedure through which litigants can ask for extra time.

Although it is possible to ask for an extension in most cases, litigants should rely on such motions only as a last resort. Extension motions are often looked on with disfavor, and are entirely within the courts discretion to grant or deny.

To ask for an extension, litigants in federal court must file a Motion to Extend, as well as an Affidavit in Support. The Motion should state the date that the brief is due, and indicate how long of an extension the litigant is requesting. The accompanying affidavit must clearly set forth the facts which indicate why the brief cannot be filed on time.

The processes for asking for an extension in the state courts of appeal are often similar to that of the Federal Courts. In Wisconsin and Colorado, for instance, litigants must submit a motion under either Wis. Stat. § 809.19(1) or C.A.R. 26(b), respectively, and the motion must state good cause for the requested extension.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What Color Should My Appellate Brief Cover Be?

Most Courts of Appeals have strict rules concerning the color of appellate brief covers. Although briefs filed with the wrong color cover may still be filed, the court may also decide to return the brief for correction. If you are filing your brief close to the deadline, a returned brief may have damaging consequences.

For briefs filed in federal court, the required cover colors are as follows:

(1) Appellant’s Brief: Blue

(2) Appellee’s Brief: Red

(3) Intervenor’s or Amicus Curiae’s Brief: Green

(4) Reply Brief: Grey

(5) Supplemental Brief: Tan

For appeals within state courts, the requirements will vary depending on the rules of the particular court. For example, the requirements for Wisconsin appellate briefs mirror those of federal court. In Colorado, however, all brief covers must be white.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

Should Trial Lawyers Handle Their Own Appeals?

Written by Managing Attorney Kimberly Alderman and published in the June 2014 edition of Wisconsin Lawyer:

A trial attorney may have good reasons for wanting to handle appeals for his or her own cases. It’s only natural to want to finish what one started, and it may seem impossible to get an appellate attorney up to speed on all the facts of a complex case. However, it is commonly accepted wisdom that attorneys generally should not handle the appeals of cases that they litigated at the trial level. Following are some considerations trial attorneys should bear in mind when deciding whether to handle an appeal themselves.

The Forest Through the Trees

When a lawyer tries a case himself or herself, it is easy to get caught up in it, often shutting out opinions from others. As the Second Appellate District of the California Court of Appeals explained:

“We also observe that trial attorneys who prosecute their own appeals, such as appellant, may have ‘tunnel vision.’ Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.”¹

A lawyer who concentrates solely on appellate work can give more objective advice on whether an appeal should be pursued at all.

You know how sometimes a potential client calls you and starts in the middle of his or her story and you have no idea what he or she is talking about? Trial lawyers tend to do that in their appellate briefs. They are so familiar with a case that they forget how to 1) talk to someone who doesn’t know the case at all and 2) take a fresh look at which legal arguments are likely to be successful on appeal.

Minding Your P’s and Q’s

Appeals are handled much differently than trials, and the audience for court pleadings is different. Rather than one judge reviewing briefs, there might be three or sometimes even seven. As California’s 4th Appellate District explained, “For better or worse, appellate briefs receive greater judicial scrutiny than trial level points and authorities, because three judges (or maybe seven) will read them, not just one judge.”²

Judges at the appellate level have fewer time constraints than those handling trials and often have more staff who can do research and identify reasoning errors, misstatements of law, and misquotations of authority. Additionally, appellate courts have the ability to “do original research to uncover ideas and authorities that counsel may have missed, or decided not to bring to the court’s attention.”³

Spending Time at the Library

Appellate courts allow more pages for briefs than do trial courts, which often means more time spent doing research on parties’ legal positions and how the case fits with a particular area of law. “Appellate counsel will have much more freedom to explore the contours and implications of the respective legal positions of the parties.”⁴

While briefs at the trial level might include citations to a case or two, briefs at the appellate level are much more substantively challenging, and the research should be as thorough as possible. The time required to hash out arguments, a process that is necessary for appeals, is more than most trial attorneys have.

Haven’t We Met Before?

When an appellate brief is comprised of trial points and authorities without any additional research, the product is always inferior. As the court said in Shaban, “The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product.”⁵

Regurgitating arguments from a trial that had an undesirable outcome is likely to lead to the same result on appeal. An appellate specialist can present the same points as those raised at trial in a brief that forces a new analysis. She can simplify a whole case into a few strong points of error and build a strong argument for the judges. In the same way that you would not expect an appellate specialist to make a strong cross-examination of a difficult witness without any training or experience, trial attorneys often are not equipped to present appellate points in a succinct, clear, and persuasive manner while applying the correct standards of law.

Be Cool, Man, Be Cool

When handling an appeal, it is easy for a trial lawyer to get caught up in the emotion of the whole case. Losing doesn’t feel good. But the feelings of resentment and betrayal, among other things, can get in the way of the appeal. When a potential client starts telling you that the police or district attorney or NASA has it out for him, you think he’s unbalanced, right? (Even if later it turns out the space program does have an issue with his patented foil-helmet design.) Well, when a trial attorney writes an appeal and lets his or her emotions show through, the reader gets the same cringe effect. This undermines the chances that the arguments made on appeal will be successful.

Another Bite at the Apple

Finally, an appeal is not a trial. A common mistake that trial lawyers make in appeals is pleading to the appellate court like it is a jury. Multiple standards of review may be in play, and it is not always clear how these standards fit together given the various arguments made in a single appeal. As California’s 4th District Court explained in Shaban, “[B]ecause the orientation in appellate courts is on whether the trial court committed a prejudicial error of law, the appellate practitioner is on occasion likely to stumble into areas implicating some of the great ideas of jurisprudence, with the concomitant need for additional research and analysis that takes a broader view of the relevant legal authorities.”⁶

Usually, there are choices to make – ways to frame the relationship between the standards that heavily influence whether the court will focus on law or fact. Appellate lawyers are better versed on using opinions and findings from other cases to optimize the presentation of law and fact, so it doesn’t come off as a trial lawyer just trying to get another bite at the apple.

Conclusion

The bottom line is that appellate lawyers do appeals for a living. Qualified appellate lawyers know the “ins and outs” of the entire appellate process and have a rapport with appellate courts. They know which case law an appeals court is going to find persuasive, can do the in-depth research necessary, and are experienced in working with trial lawyers to determine the most likely path to relief on appeal. At the very least, trial lawyers who are dead set on litigating their own appeals should consult with an appellate attorney who can assist them in avoiding the pitfalls described above.

Endnotes

¹ Estate of Gilison, 77 Cal. Rptr. 2d 463, 467 (1998).

² In re Marriage of Shaban, 105 Cal. Rptr. 2d 863 (2001).

³ Id.

⁴ Id.

⁵ Id.

⁶ Id.

What is a Request for Certification?

Sometimes, a case presents a matter of law that would be better answered by the courts of another state or jurisdiction. This often occurs when federal courts are asked to decide an issue that turns on state law. When this occurs, the reviewing court may ask a court within another jurisdiction or state to consider the question.

The Supreme Court of Wisconsin, for example, may answer questions of law certified to it by the United States Supreme Court, a United States Court of Appeals, or the highest appellate court of any state. In order to request that the Supreme Court of Wisconsin answer a question of law, a party must submit a request for certification that includes:

(1)  The questions of law to be answered; and

(2)  A statement of the facts relevant to the questions certified and showing the nature of the controversy in which the questions arose

Upon receiving a request for certification, the Supreme Court of Wisconsin may answer the question of law, however is not required to do so. Importantly, only a court (not an independent litigant), may file a request for certification.

To speak with a knowledgeable attorney about your case, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).