In 2011, Texas enacted a program to certify specialists in criminal appellate law. There has long been board certification in criminal law, so why is there a need for certification in criminal appellate law?
Criminal Defense is Not a Criminal Appeals
Many people hiring a lawyer to handle a criminal appeal do not realize that most criminal defense lawyers rarely handle criminal appeals. The vast majority of criminal defendants eventually enter some kind of plea agreement with the prosecuting authority. Since the purpose of an appeal is to review whether there was an “error” in the trial court proceedings, plea agreement proceedings almost never result in appeals. If the defendant receives the sentence he bargained for, it is virtually impossible to assert there is an error in the proceedings. Appeals, therefore, follow criminal trials. Since there are relatively few criminal trials there are relatively few appeals.
Criminal Lawyers are not Criminal Appeals Lawyers
Many lawyers also do not handle appeals because they don’t like to do them. Appeals require long hours of uninterrupted work in the office researching cases and drafting briefs. Most lawyers prefer to work in the courtroom. Also, appellate work can be depressing. Statistically it is more difficult to win appeals than it is to win in front of the jury. Finally, many lawyers do not want to pay the overhead expense of maintaining even a minimal law library or access to expensive computer data bases that greatly facilitate legal research, such as WestLaw.
Nevertheless, most criminal defense lawyers are always anxious and willing to accept a fee. So when a prospective client comes in the door seeking to hire a criminal defense lawyer to handle a loved one’s appeal, defense lawyers are likely going to taut their many years of experience without disclosing that they haven’t argued before a court of appeals in years, if ever.
With the creation of board certification in criminal appeals the Texas State Bar is doing what it can to lessen these problems. As long as consumers of legal services have sufficient knowledge to seek a board certified attorney they will know to seek an attorney board certified in handling appeals. In the next few years as this program comes into full fruition, clients should begin seeking to hire lawyers with certification in criminal appeals. Hopefully the level of advocacy in the criminal appellate courthouses in Texas will also rise.