Appellate Advocacy

The role of an appellate court is to ensure that a trial court decision was correctly decided. To that end, both state and federal courts have at least one layer of obligatory appellate review. The appellate process also serves to ensure uniformity in the application of law and to provide guidance to lower courts. On appeal, the focus shifts from gathering and proving the facts of the case to the legal questions concerning the propriety of a lower court’s decision. Effective appellate practice demands written and oral advocacy at the highest level.

Appellate courts will reverse or modify a trial court’s ruling only if they determine that the lower court committed a reversible error. Parties are not guaranteed perfect trials, and few cases make it to a judgment without a few errors being committed along the way. To obtain relief from an appellant court, however, a party must show that not only did an error occur, but that this error sufficiently jeopardized the party's rights, so as to warrant reversal of the decision. When reviewing any lower court decision, an appellate court will apply certain standards of review to determine whether the lower court erred.

Notably, however, entertaining an appeal does not mean that the appellate court will retry the case. Rather, appellate courts review the record established below, including transcripts, pleadings, motions, orders, and the judgment giving rise to the appeal. As a result, appellate courts are deferential to trial court rulings that concern questions of fact or where errors involving discretionary decisions made by the judge below. On questions of law, however, appellate courts review these issues “de novo." Under this standard of review, appellate courts show no deference to the trial judge’s interpretation of the law. 

It is vitally important to understand the standards of review applicable to the legal questions under review on appeal. Apart from a concrete understanding of these legal standards, effective appellate advocacy requires a mastery of the record and superlative research, analysis, and writing skills. We are acutely aware of what constitutes a successful appellate strategy. Contact Barton Cerjak today to learn more about our firm’s appellate practice.

Representative Matters

• Successfully defended one of the Unnamed Movants in the State’s John Doe II Investigation, which was halted and declared unconstitutional by the Wisconsin Supreme Court; the arguments advanced in briefing to the court were then adopted and codified into law by the Wisconsin Legislature. See State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, denied, 137 S. Ct. 77 (2016); Wis. Stat. § 968.26(5)(c) (codifying the Fourth Amendment’s neutral-and-detached magistrate requirement into the John Doe statute to prevent John Doe Judges from unilaterally issuing search warrants in the criminal inquests they oversee).
• Successfully defended Milwaukee Brewer, Ryan Braun, on appeal to preserve the trial court’s dismissal of all claims against him, which were brought by his former friend. See Sasson v. Braun, 2015 WI App 58, review denied, 2016 WI 2.
• Argued before the Seventh Circuit Court of Appeals in connection with the pro bono representation of a criminal defendant to challenge the sentence he received for his role in an international fraud conspiracy. See United States v. Cerna et al., 676 F.3d 605 (7th Cir. 2012).