Steve Palmer: All right. Steve Palmer here with Lawyer Talk, coming at you with another three things episode. What's? A Three Things episode. Well, you're about to find out if you keep listening for the next five, six minutes. But I'll give you the short version. I'm just giving you three things about different areas of the practice of law, what I do primarily and maybe what others do. And, you know, I might even take some questions that you all send me in the Q and A series and turn them into Three Things series, because everybody's got three things that they want to know about something, and that's what I'm here to provide, three things you would want to know. I'm doing a lot of appellate work these days. That is, people have been convicted after trial and they want to appeal. And I want to give you three things about the appellate process to sort of break this down. First, an appeal is not a retrial. It doesn't mean you get to go and argue the facts to a different court and try to get a different outcome. It just doesn't work that way. I wish it did, and a lot of people think that it does.

[0:00:48] Steve Palmer: Or I can always appeal, and I can go make this argument or that argument. And one of the things I do often is when I'm explaining to folks how the appeal process works, the direct appeal process, I have to tell them, look, we don't get to argue the facts here. I have to look for legal mistakes, mistakes that were made at the trial. So that's the first thing. We don't get a retrial on the facts. We have to look for mistakes in law and then try to argue that those mistakes were so bad that we should go do it over. Sort of like when your mom came in and somebody was cheating on the Monopoly game or somebody didn't follow the rules, and she says, well, the only remedy here is just to play it over. You got to play it over. And if the rule cheat wasn't so bad, well, she might say, all right, well, you got to give so and so $100 or you got to take off one hotel, but you can keep playing that's sort of like the appellate process. So that's the first thing. The second thing you're going to want to know is that I cannot look at facts that are outside the record of a trial. What the hell does that mean? Well, here's what that means. When you have a trial, the record is usually when the court reporter sitting at the front of the room. In the old days, and most say about at least 60, 70% of the courtrooms, I go and still have a court reporter typing out information, using their stenography skills and taking their shorthand on their little stenography machines, and we get a transcript.

[0:02:07] Steve Palmer: And the transcript is really it's supposed to be a word for word verbatim, whatever happened at trial. The other parts of the record would be things, documents that were filed. Like if somebody hears there's a motion to suppress filed. And if the judge ruled against you on such a motion, that would be filed in the record. And ultimately, that could be part of a direct appeal. But anything I can't point to, anything I can't see, anything I can't read from the filed record, I cannot raise it. I can't do anything with it on direct appeal. So, for instance, if you think, well, my lawyer didn't interview this witness, or maybe this witness lied when my lawyer did interview this witness and now they've changed their story, well, if I read the transcript on appeal and I look for that, I can't find it. And generally speaking, then I cannot raise it on direct appeal. But don't worry, not all is lost. There is a possible place. There's a remedy. There's a place that you can raise those things that aren't on the record. We call them post conviction proceedings. That's probably another three things series.

[0:03:07] Steve Palmer: But just understand, it ain't the direct appeal. It has to be done on post conviction. And be mindful of the deadlines on post conviction, because if your lawyer can't tell you that stuff, maybe you're talking to the wrong lawyer about post conviction. So I guess be vigilant about it, ask questions, and make sure the attorney understands that. You may want to also explore post conviction remedies. And then finally, I've already covered some of this, but finally, what happens if I win my appeal? Here's the third thing. If you win your appeal, it doesn't necessarily mean that you win the case and go home. Most people think, well, I've won my appeal. And we have this understanding like, all right, I won the appeal. The case is over. I get to walk out free. Most of the time, that's not true. So generally speaking, if you win your appeal, it's like the Monopoly scenario. You get a do over.

[0:04:01] Steve Palmer: You get to go back to the trial court level, and you get a new trial. And usually what will happen is when we argue for these kind of legal errors or asking a court to reverse on these legal errors, what we're telling the court to do is reverse the decision of the trial court. Remand the case, send it back down to the trial court and have them fix it with rules in play that are consistent with this new decision. So say they let in evidence. The trial judge let in hearsay evidence that wasn't admissible, shouldn't have been admitted at all. Well, now what will happen is the Court of appeals say, look, that's such a big problem that we're going to send it back and make you give him a new trial. But you now are not allowed to let that evidence in. You have to follow this new law of the case. So that's what you win. So you always have to be careful. If you have a case that was impossible to win at trial the first time, it's not always clear that it's going to be possible to win it the second time. Now, hopefully the errors, if it's getting reversed, are so egregious that when the new rules go into place, you have a better chance. And then, of course, I would always rather have two bites at the apple instead of only one. And if you lost the first time, hopefully you've learned from it. Hopefully there's a way to resolve it either with or without a trial in a way that's better than it was the first time.

[0:05:21] Steve Palmer: So there you go folks. There's your three things that you'd want to know when you're, ah, staring a conviction in the face and you're talking about doing an appeal. So stay tuned for more three things at Lawyer Talk. Off the record, on the air, at least until now.