Appellate Litigation

An appeal is a formal request to a higher court to fix a mistake made by a lower court or administrative agency. Most appeals are taken when the lower tribunal has finished its job—delivered its judgment after trial, for example. Some appeals, or special applications to an appellate court, occur at earlier stages in a case. For example, if a judge decides—over your objection—that the other side may see evidence that you believe it is not legally entitled to.

Appellate litigation is a highly specialized area of law, subject to a tangle of complex rules and time constraints. Appellate skills and abilities differ from trial work. For example: persuading a panel of appellate judges that the trial court misapplied the law, or abused its discretion, is quite unlike proving your case to a jury. Appellate litigation is the most “academic” branch of the law. And our partners—with degrees from the University of Oxford in England, Northwestern University, and the University of California at Berkeley—practice it at the highest level.

A lawsuit can collapse after trial— to mention a few pitfalls—if a party misses the arcane deadlines for filing post-trial motions and notices of appeal, misconstrues the standard of appellate review, clutters a brief with distracting detail, fixates on minor lower court errors instead of major blunders that merit reversal, or crosses the line from zealous advocacy to misrepresentation. Weiss & Kahn provides the experience and ingenuity needed to obtain the best possible results in this exacting legal environment.

A successful appeal turns on the appellate lawyer’s ability to convince a tiny, specialized, and over-worked audience—the panel of appellate judges assigned to your case—to see the core legal issues from an angle that serves the client’s interests. The best appellate lawyers clarify how and where the lower court went wrong in clear, jargon-free prose—and show, with appropriate legal support, what the higher court should do to make things right. Weiss & Kahn handles all types of appeal this way—at any stage of a legal proceeding—in state, federal, and administrative agency (e.g., immigration) matters.

We handle appeals related to our own cases of course, but handle far more matters referred by well-established trial lawyers and their clients. Working with clients and trial counsel, we determine whether an order is appealable and its filing deadlines. We advise whether an appeal is worth taking at all—legally, ethically, financially, and emotionally. If the client decides to go ahead, we take over the case: meeting notice and filing deadlines, ordering the trial court record, drafting motions, and researching and writing the briefs—the documents by which we seek to persuade the appellate court that the lower court made mistakes that must be corrected. Of course, if our client “won” in the lower court—and the other side appeals—we would defend the trial court’s judgment as correct and argue that it should be left undisturbed on appeal. We appear at oral argument; draft or respond to post-decision motions (rehearing, rehearing en banc, clarification, and certification); and seek further appellate review as appropriate.

To maximize the likelihood of winning on appeal, Weiss & Kahn also offers litigation support to trial counsel—preparing and presenting motions before, during, and after trial; drafting legal memoranda; unraveling legal puzzles as a trial unfolds; overseeing trial counsel’s preparation of draft orders; and monitoring trial proceedings from start to finish.

We produce literate, polished, creatively-argued briefs, motions and memoranda of law. Our partners hone the quality of their writing, research, and oral advocacy by organizing and contributing to professional conferences, and writing professional and academic articles. Dr. Kahn, for example, wrote the keystone chapter—“The Constitutional Foundations of Immigration Law”— for the leading treatise on immigration law. See our webpage on the partners’ publications.

The firm excels at oral argument. Both partners have taught college for many years. Dr. Kahn, for instance, has taught graduate seminars for 30 years, and currently teaches both International Law and International Human Rights at the University of Miami. Oral argument, at its best, is like a lively seminar among equals. We operate comfortably, and authoritatively, in that setting.

Summaries of some of the firm’s significant appellate cases are available here. Note that we were not trial counsel in any of these cases. And summaries of some of our immigration appeals are available here.