Criminal Appeals Lawyer

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

What does a criminal appeals lawyer actually do?

A criminal appeals lawyer reviews the trial record for legal error, selects the issues worth briefing, and argues them to a panel of appellate judges. It is a different discipline from trial work — record analysis and written argument, not cross-examination. And in one specific situation your trial lawyer cannot handle it: no lawyer can argue their own ineffectiveness.

Key takeaways on hiring an appeals lawyer

• Appellate work is record mastery, issue triage, and brief writing. There are no witnesses and no new evidence.
• Your trial lawyer cannot raise a claim that your trial lawyer was ineffective. That is a conflict, not a preference.
• Issue selection is the whole game. Jones v. Barnes, 463 U.S. 745 (1983): counsel “does not have a constitutional duty to raise every nonfrivolous issue requested by the defendant.”
• If you cannot afford counsel, appellate representation is provided under 18 U.S.C. § 3006A.
• Federal appellate fees are commonly structured as flat fees by stage, because the work is predictable in a way trial work is not.
• Receiving an Anders brief means your appointed lawyer has told the court your appeal is frivolous. That is a signal to act, not to wait.

The conflict rule: why your trial lawyer usually should not handle the appeal

This is the most useful thing on this page, so it goes first and in a table.

The question	The answer
Can my trial lawyer file the notice of appeal?	Yes — and if appointed under the Criminal Justice Act, ordinarily must, unless relieved.
Can my trial lawyer brief and argue the appeal?	Often yes, on record-based issues.
Can my trial lawyer argue that my trial lawyer was ineffective?	No. A lawyer cannot be expected to identify, investigate, and argue their own errors. The interest in defending one’s own performance is directly adverse to the client’s interest in proving it was deficient.
Where does the ineffectiveness claim go instead?	A § 2255 motion — Massaro v. United States, 538 U.S. 500 (2003): an ineffective-assistance claim “may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.”
Does keeping trial counsel forfeit the claim?	No. Massaro holds that “failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.”
So when does this actually matter?	When your strongest complaint is about what your lawyer did or failed to do. That claim will not be identified, developed, or raised by the lawyer who would be its subject.
What is the practical step?	Have someone other than trial counsel read the record before the appellate brief is written.

The reason this belongs at the top rather than buried in a FAQ is that it is invisible from the client’s side. A defendant who was unhappy with trial counsel will often keep that lawyer for the appeal out of inertia, loyalty, or the reasonable assumption that the lawyer who knows the case best should handle it. In the one circumstance where the complaint is about the lawyer, that assumption is exactly backwards.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The question this firm asks on a new appellate consultation is not “what went wrong at trial.” It is “what do you wish your lawyer had done differently.” If the answer is about rulings, the direct appeal is the right forum and trial counsel could in principle handle it. If the answer is about the lawyer, the case needs a second set of eyes on the record before anything is filed — and the sooner the better, because the two remedies run on different clocks.

Appellate work is a different job

Trial advocacy and appellate advocacy share a bar card and almost nothing else.

	Trial lawyer	Appellate lawyer
Audience	Twelve jurors, mostly non-lawyers	Three judges, all lawyers, with clerks
Raw material	Witnesses, exhibits, live testimony	A closed paper record
Core skill	Examination, persuasion in real time, jury feel	Record mastery, issue triage, written argument
New facts	The whole point	Not permitted
What decides it	The evidence and the jury’s view of it	The standard of review and preservation
Time pressure	Instant — objections in seconds	Weeks of drafting under a fixed schedule
Deliverable	A verdict	A brief

The rules themselves reflect this. Fed. R. App. P. 28(a) requires an appellant’s brief to contain ten specified components in a fixed order, including — for each issue — “a concise statement of the applicable standard of review.” That is a technical requirement with no analogue at trial, and it points at the actual work: the standard of review usually decides the issue. See standard of review appeal.

Issue selection is the whole game

The most common misunderstanding about appellate advocacy is that more issues means a better appeal. The opposite is true, and the Supreme Court has said so.

Jones v. Barnes, 463 U.S. 745 (1983), holds: “Defense counsel assigned to prosecute an appeal from a criminal conviction does not have a constitutional duty to raise every nonfrivolous issue requested by the defendant.” The Court’s reasoning is a piece of practical advocacy advice: “Experienced advocates have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.”

Why this matters to someone choosing a lawyer: a brief raising eight issues signals to the panel that counsel could not identify a strong one. It also dilutes the word count available for the issue that might actually win, and it invites the court to dispose of everything in a short unpublished disposition.

Good issue selection is a ranking exercise across three variables:

1. Was it preserved? A preserved issue puts the burden on the government to prove harmlessness; an unpreserved one puts the burden on the defendant. See preserving error for appeal.
2. What standard of review applies? A de novo legal question is worth several times an abuse-of-discretion complaint.
3. What relief does it produce? A sentencing issue that yields resentencing may be worth more in practice than a trial issue that yields a retrial on the same evidence.

Questions worth asking a prospective appellate lawyer

Phrased so that a non-lawyer can use them, and with a note on what a good answer sounds like.

Ask	What a strong answer sounds like
“How many federal criminal appeals have you briefed and argued?”	A specific number, and a distinction between briefed and argued — most federal appeals are decided without argument
“Will you read the entire transcript before we discuss issues?”	Yes, without qualification. Issue selection before a full read is guesswork
“Which circuit will hear this, and have you practiced there?”	The correct circuit named immediately, and a candid answer about admission
“Which of my issues were preserved by an objection?”	An answer that distinguishes preserved from unpreserved, or a straightforward “I need the transcript to tell you”
“What standard of review applies to my best issue?”	De novo, clear error, abuse of discretion, or plain error — named, with a reason
“Is anything in my case a § 2255 claim rather than an appeal?”	A real sorting answer, not “we’ll raise everything”
“Realistically, what does winning look like here?”	Remand for resentencing or a new trial, stated plainly — not release, unless the issue is sufficiency
“How is the fee structured, and what does each stage cover?”	Clear stages with defined scope, and clarity on what happens if there is a remand
“Who will actually write the brief?”	A named person

The question doing the most work is the third from last. A lawyer who answers “we’ll get your conviction overturned” is telling you something about how they practice. No lawyer can promise a result, and the ones who describe realistic outcomes — including the possibility of affirmance — are generally the ones who have handled enough appeals to know.

Retained, appointed, and what each means

Appointed counsel. If you cannot afford an appellate lawyer, one is provided. 18 U.S.C. § 3006A establishes the Criminal Justice Act plan under which each district provides representation for financially eligible defendants, and that representation extends through appeal. Trial counsel appointed under the Act ordinarily remains responsible for the appeal — including filing the notice of appeal — unless relieved and replaced.

Appointed does not mean lesser. Federal defender offices and CJA appellate panels include some of the most experienced federal appellate practitioners in the country, and many federal defender offices have dedicated appellate units.

Retained counsel. Retaining counsel buys three things: choice of lawyer, the lawyer’s time and attention as allocated by that lawyer, and independence from any conflict carried over from the trial. It does not buy an outcome, and any page suggesting otherwise should be read carefully.

Substitution. Changing counsel for the appeal is routine and is usually handled at the very beginning of the appellate process. Under Fed. R. App. P. 12(b), “the attorney who filed the notice of appeal must, within 14 days after filing the notice, file a statement with the circuit clerk naming the parties that the attorney represents on appeal.” That filing is the natural moment to sort out who is handling the appeal.

How federal appellate fees are typically structured

No firm’s fee is stated here, and no page should quote you one without seeing the record. What can be described honestly is the shape of the arrangement.

Federal appellate work is commonly billed as a flat fee by stage, because — unlike trial — the workload is largely predictable in advance:

Stage	What it covers	What drives the cost
Record review and assessment	Reading the full transcript and record; identifying and ranking issues; advising whether the appeal is worth pursuing	Length of trial and volume of the record
Opening brief	Research, drafting, record citation, the appendix	Number and complexity of issues
Reply brief	Responding to the government’s brief	Generally smaller and more predictable
Oral argument	Preparation and argument, if granted	Whether the court grants argument at all
Post-decision	Rehearing petition, certiorari petition, or remand proceedings	Usually separately engaged

Two structural facts affect cost more than anything else. The length of the record drives the first stage, and it is not negotiable — the transcript is however long the trial was. And whether the court grants oral argument is outside anyone’s control: in the 12 months ending September 30, 2025, of 18,608 appeals terminated on the merits, 13,752 were submitted on the briefs and 4,856 were argued (AO Table B-4A).

Contingency fees are not used in criminal defense. A flat fee, or a stage-based flat fee, is the norm.

What the engagement actually looks like

Appellate representation has a shape, and knowing it makes it much easier to tell whether the work is progressing or stalled.

Weeks 1–2: the deadline and the record order. The notice of appeal has to be on file within 14 days of entry of judgment, and within 14 days after that the transcript must be ordered and a representation statement filed with the circuit clerk. If you are retaining new counsel, this is the compressed window in which it has to happen. See how to appeal a federal conviction.

Months 1–6: waiting for the transcript, and reading it. This is the longest and quietest stretch, and it is the one families most often misread as inactivity. The court reporter is producing the transcript; nothing can be briefed until it exists. Once it arrives, counsel reads all of it — pretrial hearings, trial, sentencing — which on a multi-week trial is thousands of pages.

After the record is filed: issue selection and the opening brief. The appellant’s brief is due 40 days after the record is filed. This is where the case is actually made, and where the ranking described above happens. Expect to be asked about facts, and expect some of what you raise to be ruled out as off-record. See grounds for appeal.

Then: the government’s brief, a reply, and waiting. The government has 30 days; the reply is 21. After that the case sits with the panel until it is calendared or submitted.

Finally: a decision, and a decision about what comes next. Rehearing, certiorari, or the transition to collateral review — each with its own deadline, and each a judgment call rather than an automatic step.

When to bring in appellate counsel

The instinct is to wait until there is something to appeal. That is usually a few months too late.

The most valuable moment to involve appellate counsel is before sentencing, for a reason that has nothing to do with the appeal itself: preservation. Whether an issue is objected to on the record — and objected to on the right ground — determines whether the court of appeals reviews it under an ordinary standard or under plain error, where the defendant carries the burden. An appellate lawyer reading the case before the sentencing hearing can identify what needs to be said on the record, at the one moment it can still be said. See preserving error for appeal.

The second-best moment is immediately after judgment, inside the 14-day window, when there is still time to make an unhurried decision about who files and who briefs.

The most common moment, in practice, is several months later, when the transcript has arrived and someone has read something troubling in it. That still works. It is simply a narrower set of options than the first two.

Referring trial counsel are the ones best placed to make the early call, and bringing in separate appellate counsel is not a criticism of the trial lawyer — it is standard practice in serious cases, and it protects the trial lawyer as much as the client.

Working with an appellate lawyer from inside

Most federal appellants are in custody while the appeal runs, which changes the mechanics of the relationship in ways worth planning around.

You will not have the record. Transcripts are long, expensive to duplicate, and institutions restrict what may be received and stored. Expect counsel to work from the record and to discuss it with you, rather than to send you all of it. If there are specific portions you need — the sentencing transcript is the usual one — ask specifically rather than generally.

Communication is slower and less private than you expect. Institutional email systems are monitored and are not confidential. Legal mail and properly scheduled legal calls are the appropriate channels for anything substantive about the case. Plan the timing of decisions around that, especially when a deadline is short — an Anders response or a decision about certiorari cannot be sorted out over three weeks of ordinary correspondence.

Your memory is evidence, and it is perishable. You were present at every hearing; counsel was not at the ones that predate the engagement. What you remember about what was said, what your lawyer told you, and what you asked for is genuinely useful — particularly on whether you asked trial counsel to file an appeal, which is the whole of a Roe v. Flores-Ortega claim. Write it down early, date it, and keep a copy.

The appeal does not affect your BOP placement, programming, or credits. A pending appeal is not a reason to defer RDAP, First Step Act programming, or anything else. Those tracks run independently, and pausing them while waiting on an appellate decision that may take a year or more costs real time.

The right to effective appellate counsel

A defendant who has appellate counsel is entitled to effective appellate counsel — the right is not satisfied by the mere presence of a lawyer.

Evitts v. Lucey, 469 U.S. 387 (1985), holds: “The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right.” Evitts is a state-prisoner case, so its Fourteenth Amendment framing is exact; for a defendant in federal court the due process guarantee runs through the Fifth Amendment, and the substance of the entitlement is the same.

Where appellate counsel’s performance falls short — most commonly by omitting a strong issue that was preserved and available in the record — the remedy is a claim of ineffective assistance of appellate counsel, brought under § 2255 rather than in the appeal itself. Jones v. Barnes sets the boundary: because counsel has no duty to raise every nonfrivolous issue, the claim has to be that a clearly stronger issue was passed over, not merely that an issue was omitted. See ineffective appellate counsel.

If your lawyer files an Anders brief

There is one filing that tells you the relationship is not going to produce an appeal on the merits.

If appointed appellate counsel concludes the appeal is wholly frivolous, counsel may move to withdraw. Anders v. California, 386 U.S. 738 (1967), requires that the “request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.”

Two things are true at once: the court has an independent obligation to examine the record, and you have a right to respond in your own words. An Anders brief is not a neutral procedural event, and it is a reasonable moment to seek a second opinion from counsel who has not already concluded there is nothing there. See anders brief.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: Families often call the week an Anders brief arrives, and the most useful thing to know is that the clock is short and the response is yours to file. Whatever else happens, the pro se response should be written and filed within the time the court gives. It costs nothing, it preserves the point, and courts do read them.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best, P.C. is a boutique federal criminal appellate and post-conviction firm founded in 2019 and run on an intentionally small caseload, with offices in Columbia and Mount Pleasant, South Carolina, serving clients nationwide.

Elizabeth Franklin-Best has more than 20 years of federal and appellate criminal defense experience, including seven years as appellate counsel with the South Carolina Commission on Indigent Defense and seven years of capital post-conviction and appellate practice. She has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record. She is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit — and has appeared pro hac vice in federal courts from Montana to Florida. She is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for Litigation: White-Collar Crime & Government Investigations, was named South Carolina Public Defender of the Year in 2010, and is the author of Reversing Your Criminal Conviction: Develop Your Winning Strategy (2023).

Because the firm handles both direct appeals and § 2255 litigation, the sorting question — which claims belong in the appeal and which belong in a collateral motion — is answered by the people who would litigate either one.

Talk to a criminal appeals lawyer

If a federal judgment has been entered, the first questions are what day it is and who is handling the appeal.

Schedule a consultation · Phone: (843) 620-1100 · Columbia office: 3710 Landmark Dr #113, Columbia, SC 29204

Elizabeth Franklin-Best, P.C. represents clients in federal courts nationwide as a federal appeals lawyer. Consultations are confidential.

Related guides on working with appellate counsel

• Federal appeals lawyer — the hub: how a federal criminal appeal works end to end
• Federal appeals court — the circuit your counsel needs to know
• How long does an appeal take — what to expect from the engagement, month by month
• Appeal bond — whether release pending appeal is worth pursuing
• Interlocutory appeal — if the case has not reached judgment yet
• What happens after an appeal is granted — what a win actually produces
• Petition for rehearing — the 14 days after an adverse decision
• Certiorari petition — and the 90 days after that

Frequently Asked Questions About Criminal Appeals

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026