A Conversation with James Lobsenz, Part II: When to Appeal

We'll be featuring a profile of James Lobsenz, a criminal defense and appellate lawyer with Carney Badley Spellman in Seattle, and the ACLU's cooperating attorney in the Witt v. Department of the Air Force case, in the next issue of Washington Super Lawyers. But we had such an interesting conversation with Mr. Lobsenz we couldn't include it all in the story. Here's part of what was left out. (You can read part I, "What are Juries Thinking Anyway?" here.)

With your appellate cases, how often do you say to the client "You have no case?"

If somebody comes in and says, "I was convicted last week, or my brother was convicted last week, and we'd like you to handle the appeal, and we wonder what you think his chances are," I usually say, "I have no idea what his chances are. You just walked in here and I don't know anything about the case." But I try to say it in a nice way.

Jim_Lobsenz2.jpgPeople don't want to invest a lot of money if they have no decent chance. But I tell them: I will figure out whether you have a good chance or not, and I'll figure it out before I start to write. Sometimes I just order all the transcripts and read everything that was ever filed in the court, and then usually I write my clients a letter, a long letter, saying, "Now I have what I need to be able to give you an opinion. I've discovered in the course of this two-week trial there are four things that happened that give rise to issues that you might appeal. They are A,B, C, and D. And here's what I think of your chances on A, and on B, and C and D, and you can decide."

The client can decide. And it goes different ways depending upon what they have at stake.

If I tell somebody they have a really good chance, they usually go forward. Not many of those people say, "I want to drop the appeal." [laughs]

A lot of times you can say, "You have a fair chance. I don't want to describe it as a great chance, I don't want to describe it as a non-existent chance, it's somewhere in the gray zone of 'fair,'" which is not saying a whole lot. Some of those people will say, "If that's all you can say, I'd rather not spend the money, so let's drop it." Others say, "Good, let's keep going."

Sometimes it depends what's at stake. Is it a civil judgment for $10 million? Is it a criminal judgment they have to go to prison for 45 years or the rest of their life?

Sometimes I will talk to their trial attorneys and ask them, "What are your ideas about what we might appeal?" Sometimes I can evaluate some of those ideas, if they have any, quickly, and sometimes I can't evaluate them without reading the whole transcript. The ones I can evaluate quickly are pretty technical things sometimes. The attorney might say, "This jury instruction was given, I objected, I said it was wrong, I told the judge read this case, this instruction is wrong don't give it, and the judge gave it." That kind of a narrow issue. I can say, "I think you're right, I don't know why the judge didn't listen to you."

Other times they might say, "I think the judge made a mistake to allow this witness to testify to that." First of all, it's not that easy to figure out whether or not the judge made a mistake in allowing the witness to do that; second of all, it's not easy to figure out, even if he did make a mistake, what kind of impact that mistake had on the whole thing. Sometimes you can say, "This looks to me like a pretty clear error. But whether or not it was a harmless error is anybody's guess at this moment until I read the whole transcript."

So I can't tell people very much. In the beginning.

Next: Is it difficult telling another attorney, "I'm appealing your case"?