ALWAYS APPEAL

Commercial litigators and criminal defense attorneys are likely to deal with very different cases.  But appellate attorneys can handle appeals of either kind, as the skills required of them are not so much tied to the underlying type of law as to the appellate process and the art of writing briefs.  And so we have at times written about criminal appeals in these pages, often to emphasize some of the most common grounds for those: sentencing and admissibility of evidence.

A third issue that frequently comes up is jury instructions.  When the jury returns a guilty verdict, it is saying (in a criminal-law case anyway) that the prosecution proved every element of the crime beyond a reasonable doubt.  Before it can do that, the judge must instruct it about the law that applies to the case or, in other words, about what elements must be proven.

This will be a likely ground for appeal in a high profile case, yesterday’s conviction of Virginia’s former governor on corruption charges.  One of the elements that had to be proven was that the governor did an “official act” in exchange for favors he received.  His attorneys will argue that the judge misinformed the jury about what constitutes an official act, and that arranging meetings and things like that do not qualify.

This is relevant for every kind of litigation, civil, criminal, commercial, and so on.  Before every trial, attorneys argue over how the court should instruct the jury, and there the seeds are planted for a potential appeal.  Awareness of appellate considerations in your commercial litigator gives you a more rounded representation.