After a conviction, the natural instinct is to keep the lawyer who already knows the case. It feels efficient, and the relationship is already there. But an appeal is a review of what happened at trial, including the decisions the trial lawyer made, and that changes the question.
Our view is that the appellate lawyer usually should not be the trial lawyer, or work in the same office, unless there is a specific reason it makes sense. Here is why, and when the exception applies.
The reason
Why get a different lawyer for a criminal appeal?
Because an appeal needs someone who can look at the trial with fresh eyes, including at the trial lawyer’s own work.
A different job
Trial work is about the jury and the moment. Appellate work is about the written record, the standard of review, and choosing the one or two issues most likely to win. They are different skills.
A built-in conflict
Some of the strongest post-conviction claims are about what trial counsel did or failed to do. A lawyer is poorly placed to evaluate, or argue, their own mistakes. In Missouri, those ineffective assistance claims are usually raised in a Rule 29.15 motion after the appeal, and the record for them starts now.
The exception
When can the trial lawyer handle the appeal?
When the client and the lawyer have had frank conversations, from the start, about building appealable issues into the trial.
If the defense was built with the appeal in mind, with pretrial motions, specific objections, a complete record, and a thorough motion for new trial, the trial lawyer may be well positioned to carry it forward. Another option is for the trial lawyer to bring in appellate co-counsel, so the trial lawyer’s knowledge of the case is paired with an independent review. See how we work with trial lawyers.
Appointed appeals
Who handles a public defender appeal in Missouri?
Not the trial office.
The Missouri State Public Defender has a separate Appellate and Post-Conviction division. Those lawyers work from different offices than the trial lawyers, and in our experience they are generally willing to raise ineffective assistance against their own colleagues when it is warranted.
Even so, a conviction is a serious thing to leave to any single review. Many families want a second, independent look, and a person with a public defender can always hire a private appellate lawyer instead. See changing from a public defender.
Federal cases
Does my federal trial lawyer have to handle my appeal?
In the Eighth Circuit, usually yes, unless you hire someone else.
The default rule
Under Eighth Circuit rules, trial counsel, retained or appointed, ordinarily represents the defendant on appeal, and a motion to withdraw is granted only in unusual circumstances. A Federal Public Defender or CJA lawyer from the trial typically continues on the appeal.
When the relationship has broken down
Many people who want a new lawyer for a federal appeal have lost confidence in their trial counsel. Because withdrawal is rare, the reliable way to get a different lawyer is to hire one. Appellate deadlines are short, so that decision should be made quickly.
Choosing
What should I ask an appellate lawyer?
- How do you choose issues? Strong appeals usually focus on one or two issues rather than every possible complaint.
- Will you look at trial counsel’s performance? The answer should be yes, with an eye toward any later post-conviction claim.
- What are the deadlines? A good appellate lawyer will tell you every date that matters before taking the case.
- What does a win look like here? Usually a new trial or a new sentencing hearing, not release. You should hear that up front.
Answers
Appeal lawyer questions we hear
Should my trial lawyer do my appeal?
Usually it is better to have a different lawyer review the trial, because an appeal examines the trial lawyer’s decisions and may lead to an ineffective assistance claim. The exception is when the defense was deliberately built for appeal from the start.
Does the same public defender handle my appeal in Missouri?
No. Missouri State Public Defender appeals are handled by a separate Appellate and Post-Conviction division working from different offices than the trial lawyers.
Can I get a new lawyer for my federal appeal?
Under Eighth Circuit rules, trial counsel ordinarily continues on appeal, and withdrawal requires unusual circumstances. The reliable way to change lawyers is to hire a private appellate lawyer.
Can I hire a private lawyer if a public defender is handling my appeal?
Yes. A person with appointed appellate counsel can hire a private lawyer at any time, though the earlier the better because appellate deadlines are strict.
Can a trial lawyer and an appellate lawyer work together?
Yes. Appellate co-counsel can help during trial with motions and objections, and after trial with the motion for new trial and the appeal.
See our direct appeals page and what happens before an appeal can start, or call 573-638-8529.
Talk to us
A second look is worth having.
If you or someone you love was convicted in Missouri state or federal court, we can review the case and tell you what an appeal could realistically do.
Attorney advertising. The choice of a lawyer is an important decision and should not be based solely upon advertisements. This article is general information, not legal advice, and it does not create an attorney-client relationship. Appellate deadlines are strict and depend on the case.
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