We have now launched an appellate law page on Facebook called Alabama Appellate Lawyer. On this page, we will be sharing a variety of information related to Alabama law with a particular focus on issues related to appeals. If you are a frequent user of Facebook, you can easily know when we’ve posted new information to our site by following our Facebook page. It also provides a less formal way to interact with us and to comment on some of the articles we have posted. We would be honored to have you join us on our Facebook page, Alabama Appellate Lawyer.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

What forms do you need to file a criminal appeal in Alabama? A Google search on this question will lead to a lot of appellate lawyer websites, but a list of which forms to file to start the appellate process is hard to find online. We are fixing that problem by providing information about the forms to our readers.

To start a criminal appeal in Alabama, a defendant needs to file the following three documents:

1. Notice of Appeal. In criminal cases, there is not a standardized form for submitting written Notice of Appeal. Lawyers or laymen will need to prepare their own form in the style of a standard criminal court motion (with case caption at the top, signatures, certificate of service, etc.). The Notice of Appeal is filed with the Circuit Clerk’s office in the county where the conviction occurred, and it is a notification that the defendant is appealing his or her conviction to the Alabama Court of Criminal Appeals (the first step in appealing a felony conviction). This document needs to directly state that the defendant gives Notice of Appeal of the conviction and sentence imposed, and that the defendant requests a reasonable appeal bond and a stay of execution of the sentence pending appeal. The Notice of Appeal should also include the date of conviction, the date of sentencing, what the defendant was convicted of doing, and the sentence that was imposed. I have not yet included any samples with this article because there is no standard form, but I will edit this post later with links to examples of ways it can be done.
2. Reporter’s Transcript Order – Form ARAP-1C. The purpose of filing the Reporter’s Transcript Order is to identify exactly what items you want the court reporter to include in the trial transcript.  If there were certain pretrial hearings that were transcribed and would be relevant to the appeal such as a hearing on a motion to suppress evidence, then a request for that hearing transcript needs to be listed by date on the form. Also, make sure to contact the court reporter for an estimate on the cost of the transcript because you will need to pay for the transcript in advance. The Reporter’s Transcript Order form can be downloaded by clicking here: ARAP-1C Reporters Transcript Order – Criminal
3. Court of Criminal Appeals Docketing Statement – Form ARAP-26. This is a two-page form that provides a significant amount of information about the case to the appellate court. Fill this out carefully, and make sure to list any post-judgment motions because those affect your deadlines in getting the appeal filed. You will also need to give a brief summary of the facts of the case, as well as list the issues you anticipate raising on appeal. However, the list of issues presented here is not binding on you when you write the actual brief. The Court of Criminal Appeals Docketing Statement can be downloaded here: ARAP-26 Criminal Appeals Docketing Statement.

Those three forms are all that need to be filed to start the process of appealing a felony criminal conviction in Alabama. Note that unless you have been declared indigent by the trial court, your appeal forms must be accompanied by a $200.0o filing fee. Also be aware that as of the date of this post, the originals of these forms still need to be hand-filed with the circuit clerk’s office rather than electronically.

Please understand that this is not everything that must be done to appeal a conviction. These forms are merely the start of the process. They are provided here as a resource for lawyers as well as to let pro se litigants have access to the relevant legal forms. The most important document that will be prepared in your appeal is the Brief of Appellant, which must strictly the follow the Alabama Rules of Appellate Procedure.

To learn more about whether to hire an appellate lawyer to work on your appeal, please read our articles on Should Trial Lawyers Handle Their Own Appeals and Mistakes Trial Lawyers Make with Appeals in Alabama.  For laymen handling their own appeals or for attorneys who do not have access to sufficient legal research resources, we suggest you look at your free legal research options through Google Scholar. If you would like to discuss retaining our firm to handle an appeal for you or your client, please fill out our Contact Form with information about your case or call us at (800) 737-3702.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

Appellate lawyer website plagiary – sometimes it is done by lawyers and sometimes it is done by website designers working for lawyers. Either way, those who do it demonstrate both a lack of originality as well as a lack of ethics.

It has come to our attention that some other appellate law firms have been taking material from our website (http://williampfeifer.com) and posting it on their websites as if they wrote it themselves. Sometimes the content is altered slightly to try to appear original, and other times it is pretty directly taken from this site. Either way, anyone sufficiently familiar with the content of our website will recognize it if they see it.

For those who are looking to hire an appellate lawyer, I’ll ask a simple question. Do you want to hire an appellate lawyer who had to steal or heavily imitate another lawyer’s work? Or would you prefer to hire the lawyer who had the knowledge and creativity to write the original material?

Compare our website to some of the other sites you’ll find online, and then Contact Us if you would like us to assist with your appeal.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

A somewhat common issue in Alabama appeals of criminal cases is whether the trial judge should have granted or denied a mistrial. When a criminal defendant moves for a mistrial, he or she is asking the judge to declare the trial so flawed that it has to be stopped and started over again with a new jury. This issue gets addressed in Alabama appeals in the context of discovery violations, prosecutorial misconduct, juror misconduct, or other events that can happen during a trial to make the proceedings unfair.

The legal standard for appellate review of a trial judge’s decision over whether to grant or deny a mistrial is very high. A trial judge’s ruling on a motion for mistrial is within the trial court’s discretion and will only be reversed by an appellate court upon a showing of “manifest abuse.” Evans v. State, 794 So. 2d 415, 431 (Ala. Crim. App. 2000). Further, where a recess or a continuance would be sufficient to address the issue creating grounds for a mistrial, the defendant must request a recess or continuance before he can request a mistrial. McLemore v. State, 562 So. 2d 639, 645 (Ala. Crim. App. 1989). A mistrial is an extreme action and is only to be declared in situations where there is no other effective curative action the trial court can take.

While challenging a judge’s ruling on a mistrial motion is difficult in an Alabama appeal, there are situations where the Alabama appellate courts will reverse a trial court’s decision. For example,  improper closing arguments by a prosecutor giving personal opinions and beliefs or arguing facts not in evidence could create sufficient grounds for a mistrial. Determining whether a trial court should have granted a mistrial is an issue that has to be reviewed on a case-by-case basis.

Do you need to appeal an Alabama case where your trial lawyer argued for a mistrial? Did your trial attorney preserve the issue for appellate review making the proper objections? Contact our office to find out about your right to appeal and to discuss whether you have grounds for reversing a conviction or verdict.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

Although we have a focus on appellate law, we still get frequent client inquiries about preparing various Alabama legal forms. While this was a part of our law practice in the past and we do have a large library of legal forms available, we are no longer engaged in that area of law practice. However, rather than continue to send people away, we decided to look at other options.

We considered making our own in-house legal forms available online, but the process for doing that is extremely time-consuming. Instead, after reviewing a variety of sources and methods for making legal forms available to our clients, we entered into an affiliate relationship with US Legal Forms. The forms we have reviewed from their service have been superior to anything else we’ve seen online and appear to comply with the requirements of Alabama law. We have even used some of their forms ourselves, which is probably as high an endorsement as can be given to a legal forms service. We cannot guarantee that a particular form will be right for your situation or that you will use it correctly, of course, but these will get you off to a better start than just randomly choosing something off the internet and hoping for the best.

Understand that not all legal forms are equal, and not all online sources of legal forms provide the same level of quality. As a general rule, we have always recommended against buying off-the-shelf legal forms, especially those sold in office supply stores. Most forms of that nature are generic stock forms that are not customized to comply with the law of any particular state, and may not be valid. We have also recommended against using online legal forms preparation services, as they are typically just filling in the blanks on those same stock forms. However, those criticisms do not apply to the forms made by US Legal Forms, as the forms we reviewed were compliant with the specific requirements of Alabama law. While you will have to fill out the forms yourself, it is not particularly difficult to fill in the blanks of a standard legal form that you can download in Word or Wordperfect format.

Our first recommendation is always that you retain an attorney or a law firm to prepare customized legal documents for your situation. However, if you are in need of Alabama legal forms and cannot afford the fees charged by a law office, then we recommend you consider US Legal Forms. Visit our Alabama Legal Forms page to learn more about the forms available for download. You can find the legal document you need by clicking through the following categories of forms, which will take you to another page with a detailed listing of the forms being made available to you.

Alabama Legal Forms Directory

•  Alabama Adoption Forms
• Alabama Guardianship Forms
• Alabama Corporation Forms
• Alabama Deed Forms
• Alabama Lease Forms
• Alabama Mortgage Forms
• Alabama Eviction Forms (Landlord -Tenant)
• Alabama Wills and Living Wills
• Alabama Forms for Probating a Will (death with a will)
• Alabama Forms for Probating an Intestate Estate (death without a will)
• Alabama Civil Litigation Forms
• Alabama Power of Attorney Forms
• Alabama General Practice Forms

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

In an effort to deal with the severe underfunding of the judicial system in Alabama, Chief Justice Roy Moore has ordered all circuit and district clerks to close their offices to the public on Wednesdays. This move is designed to enable the clerks offices to handle their workload while dealing with their staff shortages.

In order to deal with the impact this order has on filing deadlines, Justice Moore ordered each circuit to implement a drop-box system to allow for the timely filing of pleadings and motions or other time-sensitive matters. He also ordered that each circuit is to establish a procedure for dealing with true emergencies, such as petitions for protection from abuse or for the issuance of warrants.

To read a copy of Justice Moore’s order, click order closing clerks offices on wednesdays

The Alabama Rules of Civil Procedure are now available online on our website at this link. The addition of these rules is part of our effort to provide free legal information to the public so that people can understand what is going on in their trial court cases. Our firm only handles appellate court cases, but often the resolution of an issue on appeal will be determined by whether the trial court correctly interpreted and applied the Alabama Rules of Civil Procedure. If you are involved in a civil lawsuit, I encourage you to review the Alabama Rules of Civil Procedure so that you understand the procedural stages of your case.

To review the entire set of rules, visit our Law Links page or go directly to the Alabama Rules of Civil Procedure page. You can also read any of the individual rules that interest you by following their links listed below.

I. SCOPE OF RULES — ONE FORM OF ACTION

• Rule 1.      Scope of Rules
• Rule 2.      One form of action

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS

• Rule 3.      Commencement of action
• Rule 4.      Process: General and miscellaneous provisions
• Rule 4.1.  Process: Methods of in-state service
• Rule 4.2.  Process: Basis for and methods of out-of-state service
• Rule 4.3.  Process: Service by publication
• Rule 4.4:  Process: Basis for and methods of service in a foreign country
• Rule 5.      Service and filing of pleadings and other Papers
• Rule 5.1.  Privacy Protection for Court Filings
• Rule 6.      Time

III. PLEADINGS AND MOTIONS

• Rule 7.      Pleadings allowed; form of motions
• Rule 8.      General rules of pleading
• Rule 9.      Pleading special matters
• Rule 10.    Form of pleadings
• Rule 11.     Signing of pleading, motions, or other papers
• Rule 12.     Defenses and objections—When and how presented—By pleading or motion—Motion for judgment on the pleadings
• Rule 13.     Counterclaim and cross-claim
• Rule 14.     Third-party practice
• Rule 15.     Amended and supplemental pleadings
• Rule 16.     Pre-trial conferences; scheduling; management

IV. PARTIES

• Rule 17.     Parties plaintiff and defendant; capacity
• Rule 18.     Joinder of claims and remedies
• Rule 19.     Joinder of persons needed for just adjudication
• Rule 20.     Permissive joinder of parties
• Rule 21.     Misjoinder and nonjoinder of parties
• Rule 22.     Interpleader
• Rule 23.     Class actions
• Rule 23.1.  Derivative actions by shareholders
• Rule 23.2.  Actions relating to unincorporated associations
• Rule 24.     Intervention
• Rule 25.     Substitution of parties

V. DEPOSITIONS AND DISCOVERY

• Rule 26.     General provisions governing discovery
• Rule 27.     Discovery before action or pending appeal
• Rule 28.     Persons before whom depositions may be taken
• Rule 29.     Stipulations regarding discovery procedure
• Rule 30.     Depositions upon oral examination
• Rule 31.     Depositions upon written questions
• Rule 32.     Use of depositions in court proceedings
• Rule 33.     Interrogatories to parties
• Rule 34.     Production of documents and things and entry upon land for inspection and other purposes
• Rule 35.     Physical and mental examination of persons
• Rule 36.     Requests for admission
• Rule 37.     Failure to make discovery: Sanctions

VI. TRIALS

• Rule 38.     Jury trial of right
• Rule 39.     Trial by jury or by the court
• Rule 40.     Assignment of cases for trial
• Rule 41.     Dismissal of actions
• Rule 42.     Consolidation: Separate trials
• Rule 43.     Evidence
• Rule 44.     Proof of documents
• Rule 44.1.  Determination of foreign law
• Rule 45.     Subpoena
• Rule 46.     Exceptions unnecessary
• Rule 47.     Jurors
• Rule 48.     Juries of less Than 12 — Majority verdict
• Rule 49.     General verdicts, special verdicts, and interrogatories
• Rule 50.     Judgment as a matter of law in actions tried by jury; alternative motion for new trial; conditional rulings
• Rule 51.     Instructions to jury: objection
• Rule 52.     Findings by the court; judgment on partial findings
• Rule 53.     Masters

VII. JUDGMENT

• Rule 54.     Judgments; costs
• Rule 55.     Default
• Rule 56.     Summary judgment
• Rule 57.     Declaratory judgments
• Rule 58.     Rendition and entry of orders and judgments
• Rule 59.     New trials; amendment of judgments
• Rule 59.1.  Disposition of motion for new trial and other post-trial motions
• Rule 60.     Relief from judgment or order
• Rule 61.     Harmless error
• Rule 62.     Stay of proceedings to enforce a judgment
• Rule 63.     Inability of a judge to proceed

VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

• Rule 64.     Seizure of person or property
• Rule 64A.  Notice to defendant of right to claim exemption from garnishment
•  Rule 64B. Contest of claim of exemption — Garnishment of money, choses in action or personal property
• Rule 65.     Injunctions
• Rule 65.1.  Security: Proceeding against sureties
• Rule 66.     Receivers
• Rule 67.     Deposit in court
• Rule 68.     Offer of judgment
• Rule 69.     Execution
• Rule 70.     Judgment for specific acts; vesting title
• Rule 70A. Contempt in civil cases
• Rule 71.     Process in behalf of and against persons not parties
• Rule 71A.  Condemnation of property. [Omitted]
• Rule 71B.   Appeals from arbitration awards
• Rule 71C.   Enforcement of arbitration awards

IX. APPEALS

• Rule 72-76. [Omitted]

X. CIRCUIT COURTS AND CLERKS

• Rule 77.     Circuit courts and clerks
• Rule 78.     Motion day
• Rule 79.     Books and records kept by the clerk and entries therein
• Rule 80.     Stenographic report or transcript as evidence

XI. GENERAL PROVISIONS

• Rule 81.     Applicability in general
• Rule 82.     Jurisdiction and venue
• Rule 83.     Local court rules
• Rule 84.     Forms
• Rule 85.     Title
• Rule 86.     Effective date
• Rule 87.     Limited-Scope Representation

To discuss your options in appealing your case, call Bill Pfeifer at (800) 737-3702 Extension 1. You can also use the online Contact form on this website to send him an email about your situation.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

The Alabama Rules of Evidence are now available online through our website under our Law Links Directory. The evidentiary rulings of trial courts on issues during a trial are a common basis for appeals in Alabama, so it is helpful for litigants to make themselves familiar with the rules that govern a judge’s decisions. Otherwise, you could have a good issue for an appeal in your case and not even know it.

As a shortcut for those who landed on this blog post rather than the document page, the links to each of the individual rules of evidence are posted below.

Article I. General Provisions

• Rule 101. Scope
• Rule 102. Purpose and construction
• Rule 103. Rulings on evidence
• Rule 104. Preliminary questions
• Rule 105. Limited admissibility
• Rule 106. Remainder of writings or recorded statements

Article II. Judicial Notice

• Rule 201. Judicial notice of adjudicative facts

Article III. Presumptions in Civil Actions and Proceedings

• Rule 301. Presumptions in general in civil actions and proceedings
• Rule 302. Applicability of federal law in civil actions and proceedings

Article IV. Relevancy and Its Limits

• Rule 401. Definition of “relevant evidence”
• Rule 402. Relevant evidence generally admissible; irrelevant evidence inadmissible
• Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
• Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes, wrongs, or acts
• Rule 405. Methods of proving character
• Rule 406. Habit; routine practice
• Rule 407. Subsequent remedial measures
• Rule 408. Compromise and offers to compromise
• Rule 409. Payment of medical and similar expenses
• Rule 410. Inadmissibility of pleas, plea discussions, and related statements
• Rule 411. Liability insurance
• Rule 412. Admissibility of evidence relating to past sexual behavior of complaining witness in prosecution for criminal sexual conduct

Article V. Privileges

• Rule 501. Privileges recognized only as provided
• Rule 502. Attorney-client privilege
• Rule 503. Psychotherapist-patient privilege
• Rule 503A. Counselor-client privilege
• Rule 504. Husband-wife privilege
• Rule 505. Communications to clergymen
• Rule 506. Political vote
• Rule 507. Trade secrets
• Rule 508. Secrets of state and other official information: Governmental privileges
• Rule 509. Identity of informer
• Rule 510. Waiver of privilege by voluntary disclosure
• Rule 511. Privileged matter disclosed under compulsion or without opportunity to claim privilege
• Rule 512. Comment upon or inference from claim of privilege in criminal cases; instruction
• Rule 512A. Comment upon or inference from claim of privilege in civil cases

Article VI. Witnesses

• Rule 601. General rule of competency
• Rule 602. Lack of personal knowledge
• Rule 603. Oath or affirmation
• Rule 604. Interpreters
• Rule 605. Competency of judge as witness
• Rule 606. Competency of juror as witness
• Rule 607. Who may impeach
• Rule 608. Evidence of character and conduct of witness
• Rule 609. Impeachment by evidence of conviction of crime
• Rule 610. Religious beliefs or opinions
• Rule 611. Mode and order of interrogation and presentation
• Rule 612. Writing used to refresh memory
• Rule 613. Prior statements of witnesses
• Rule 614. Calling and interrogation of witnesses by court
• Rule 615. Exclusion of witnesses
• Rule 616. Impeachment by evidence of bias, prejudice, or interest

Article VII. Opinions and Expert Testimony

• Rule 701. Opinion testimony by lay witnesses
• Rule 702. Testimony by experts
• Rule 703. Bases of opinion testimony by experts
• Rule 704. Opinion on ultimate issue
• Rule 705. Disclosure of facts or data underlying expert opinion
• Rule 706. Court appointed experts

Article VIII. Hearsay

• Rule 801. Definitions
• Rule 802. Hearsay rule
• Rule 803. Hearsay exceptions; availability of declarant immaterial
• Rule 804. Hearsay exceptions; declarant unavailable
• Rule 805. Hearsay within hearsay
• Rule 806. Attacking and supporting credibility of declarant

Article IX. Authentication and Identification

• Rule 901. Requirement of authentication or identification
• Rule 902. Self-authentication
• Rule 903. Subscribing witness’s testimony unnecessary

Article X. Contents of Writings

• Rule 1001. Definitions
• Rule 1002. Requirement of original
• Rule 1003. Admissibility of duplicates
• Rule 1004. Admissibility of other evidence of contents
• Rule 1005. Public records
• Rule 1006. Summaries
• Rule 1007. Testimony or written admission of party
• Rule 1008. Functions of court and jury

Article XI. Miscellaneous Rules

• Rule 1101. Rules applicable
• Rule 1102. Title
• Rule 1103. Effective date

To discuss your options in appealing your case, call Bill Pfeifer at (800) 737-3702 Extension 1. You can also use the online Contact form on this website to send him an email about your situation.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

The Alabama Rules of Criminal Procedure govern criminal court procedures in Alabama. Because we handle a significant number of criminal appeals, we decided to make the full text of the Alabama Rules of Criminal Procedure available on our website. These rules are often important in appellate court briefs in criminal cases, especially when it can be shown that the trial court judge did not follow the correct procedural rules. They are also useful to pro se criminal defendants or to defendants in criminal cases who have attorneys but want to do their own legal research.

It is unfortunate that we are sometimes contacted about handling appeals by clients who seem to know the law better than their trial lawyers did, but this is often the case. For example, one of our clients would still be a registered sex offender had his nephew (who was not a lawyer) not known the law better than his trial lawyer did. Because of the nephew’s own legal research, he contacted our office to start the process for overturning a void conviction. The outcome was that the conviction was set aside, the client was removed from the sex offender registry, and all charges against him were ultimately dismissed. That would never have happened if the nephew had not taken the first step of learning the relevant law himself, so that he knew to contact us to correct this injustice. This example is one of many reasons why I recommend learning as much about your own case as possible.

To read the Alabama Rules of Criminal Procedure, click here. To review the Alabama Rules of Appellate Procedure, click here. If you would like to explore some of the other legal resources available online on our website, visit our Law Links directory. We will also be making these rules available as an ebook or possibly even as a printed book in the near future, so watch for a future announcement on our blog.

Earlier this year, our office handled an appeal out of Lauderdale County involving the Alabama Uniform Fraudulent Transfer Act (AUFTA). At issue in the appeal was the trial court’s admission of irrelevant and highly prejudicial evidence that should have been excluded from trial.

Our clients were accused of having participated in the fraudulent transfer of multiple parcels of real estate. These transfers were alleged to be the result of their father trying to get land out of his name before being found liable in a civil lawsuit for causing massive injuries to a young woman in an arson incident. There was no claim that our clients had anything to do with the arson, but merely that they had assisted their father in divesting himself of his assets by accepting property transfers into their names. At trial, the defendants were ordered to pay over a half million dollars in damages.

During the trial, the trial court permitted presentation of extensive graphic evidence of the young woman’s physical injuries caused not by a conveyance of property, but by a fire in which our clients indisputably played no role. This evidence was irrelevant to the issues on trial, had no probative value in determining whether there had been a violation of the Alabama Fraudulent Transfers Act, and served solely to inflame the passions of the jury to the point that it was impossible for our clients to receive a fair trial. In other words, the jury was so focused on the injuries caused to the young woman by someone else, they couldn’t fairly evaluate whether our clients had engaged in improper business dealings with their father.

Fortunately for our clients, the Alabama Supreme Court agreed with us that the trial court made a mistake. In an opinion released in September, the Alabama Supreme Court cited Rule 401 of the Alabama Rules of Evidence for the rule that for evidence to be relevant it must concern a fact that is of consequence to the determination of the action. An erroneous ruling on the admissibility of evidence by a trial court creates reversible error only if the error has probably injuriously affected substantial rights of the appealing parties. In this case, the Alabama Supreme Court said the affect was obvious, commenting that “The evidence had an undue tendency to suggest decision on an improper basis.” Therefore, the Alabama Supreme Court reversed the civil judgment and remanded the case back to Lauderdale County for a new trial.

To learn more about this complicated case, you can read the full text of the Alabama Supreme Court’s opinion here.

If you have received a civil judgment against you and you want to challenge it on appeal, please contact our office to discuss whether we can assist you.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

In the second installment of our series on improper closing arguments in Alabama trials, we look at the problem of arguing personal opinions and beliefs. While attorneys are certainly free to talk about the evidence and draw logical inferences and conclusions from it, it is improper for a lawyer to express his or her personal beliefs and opinions. This issue most commonly arises in the context of prosecutors expressing their personal opinion to the jury that a defendant is guilty.

As the Alabama Court of Criminal Appeals commented in Quinlivan v. State, 579 So. 2d 1386, 1387 (Ala. Crim. App. 1991), “Over a half century ago, the United States Supreme Court put special restraints on a prosecutor during closing arguments because of his unique role in the criminal justice system.” In Quinlivan, the conviction of the defendant/appellant was reversed by the Court of Criminal Appeals because of the prosecutor arguing his personal belief in the defendant’s guilt. The Court stated that “we are of the opinion that the prosecutor’s argument was nothing more than a blatant statement of his personal belief in the appellant’s guilt.”

The Alabama Supreme Court also addressed this issue in Adams v. State, 198 So. 2d 255 (Ala. 1967), holding that it is never proper for the prosecuting attorney to argue to the jury his personal belief in the belief in the guilt of the accused, as it makes the lawyer’s own character and credibility a consideration to the jury. The character and credibility of the lawyers is not part of the judicial proceeding, and efforts by the prosecutor to offer personal opinions violates his or her duties under the American Bar Association Canons of Professional Ethics. In essence, it allows the attorney to testify to facts not in evidence without being sworn in as a witness or being subject to cross-examination.

As discussed in our article on Improper Closing Arguments – Part 1 – Facts Not in Evidence, this issue must be raised to the trial court by the trial lawyer by means of an objection in order for this issue to be argued on appeal. If the trial lawyer does not make an objection to the improper closing argument, then the appellate courts will not consider the issue. The sole exception to this rule is in the context of death penalty cases, where the Court of Criminal Appeals and the Alabama Supreme Court will review the issue under the “plain error” standard. This probably explains why most of the published opinions discussing this issue are capital murder cases, as so few trial lawyers ever make objections to the closing arguments of their opponents.

Did you get convicted in a trial where the prosecutor argued his personal opinion that you were guilty? If your lawyer objected to it at trial, then you may have a good basis for having your conviction reversed on appeal. Contact our office to find out about your right to appeal and to discuss whether you have grounds for reversing a conviction or verdict over improper closing arguments. Also, if your attorney failed to make an objection, it may still be possible for you to raise the issue through a Rule 32 petition. You can find several articles about Rule 32 petitions in our blog, or you can contact our office to discuss the specifics of your case.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

Improper closing arguments can provide a good basis for overturning a trial court verdict on appeal, if the issue has been properly preserved for appellate review. This is the first in a series of posts on the issue of improper closing arguments during trial. In Part 1 of this series, we take a look at a form of improper argument called arguing “facts not in evidence.” This refers to attorneys using their closing arguments to argue facts to the jury that were not presented during trial.

When an improper argument is made, “the test for review is not whether the comments influenced the jury, but whether they might have influenced the jury in arriving at it’s verdict.” Snyder v. State, 893 So. 2d 482, 543 (Ala. Crim. App. 2001). While attorneys are given a lot of room to argue reasonable inferences from the evidence, they may not argue a fact that is not supported by the evidence. Ex parte Washington, 507 So. 2d 1360, 1361 (Ala. 1986). As the Alabama Supreme Court stated in Rogers v. State, 157 So. 2d 13 (Ala. 1963), “Counsel should not be permitted to state as fact that which is damaging to defendant, and of which there is no legal proof.”

While a proper objection to an improper closing argument can lay the groundwork for reversing a case on appeal, few trial lawyers ever make the objection. There is a general attitude among many trial attorneys that making an objection during your opponent’s closing argument makes you look bad to the jury, so they often let their opponents present completely improper closing arguments without raising an objection. This is usually a big mistake. The failure to make an objection to the improper argument waives the issue on appeal, unless it is a criminal case in which the defendant is sentenced to death. When a defendant is under a death sentence, the appellate courts will still consider the issue of whether closing arguments were improper even without an objection from trial counsel under the “plain error” rule. But in all other contexts, the failure to object is fatal to arguing the issue on appeal.

Do you need to appeal an Alabama case in which the prosecutor or opposing lawyer made improper closing arguments? Did your trial attorney preserve the issue for appellate review by objecting to the arguments? Contact our office to find out about your right to appeal and to discuss whether you have grounds for reversing a conviction or verdict over improper closing arguments. And if your attorney did not make an objection, remember that you may still have an opportunity to challenge the conviction through a Rule 32 petition.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

A Health Reimbursement Account (HRA) is a special account that businesses can provide as an employee benefit to qualifying employees (with the employer generally setting the rules for how one qualifies for coverage). Internal Revenue Service (IRS) Code Section 105 authorizes businesses to create HRAs as a benefit of employment. The HRA allows the employer to pay the medical expenses of an employee and that employee’s dependents (up to a preset amount) as part of the employee’s compensation package. The payment of medical expenses through an HRA does not qualify as income to the employee for tax purposes, and it qualifies as a legitimate business expense for the business. The kinds of expenses that generally qualify for coverage under an HRA are roughly the same as those that would qualify under a Flexible Spending Account (FSA).

How does creating an employee benefit package like this benefit the employer? When the employer is able to claim his or her spouse as an employee of the company, thereby making the employer a dependent of the employee and eligible for HRA coverage of his or her own medical bills. Rather than pay the spouse a high salary, most of the spouse’s compensation package can be given in the form of HRA coverage of medical expenses.

I have recently published an article about this program for lawyers called How to Deduct Medical Bills as Business Expenses at your Law Firm. While that article was written for lawyers, the advice and information on how the program works is the same for any small business owner. If you believe your business may benefit from having a Health Reimbursement Account, read the article for more information on how it works. If you want to discuss the program with someone who can help you figure out whether you qualify, call Kelly Erdman, Lead Microbusiness Specialist at TASC, at (800) 422-4661 Ext. 2450. TASC is not the only company that can provide this program, but they were the one we chose to set up the program at our firm and it has worked very well.

I realize this post has nothing to do with Alabama appellate law, but many of our firm’s clients are small business owners so we thought this information would be helpful to them. With tax season just around the corner, it seemed like a good time to draw attention to this great way to save money on your taxes.

In his new book Criminal Defense Lawyer by my friend and former business partner Richard D. Jensen, a  case I handled last year is discussed as an example of the importance of understanding subject matter jurisdiction in criminal defense cases. In that case, a man charged with a sex offense allowed his court-appointed lawyer to talk him into taking a guilty plea. The problem: the statute of limitations on the charge had expired and the man could not be lawfully convicted of the crime. Nonetheless, after being told by his lawyer that he would “probably get probation,” he found himself in prison on a long sentence and branded with public notification as a registered sex offender.

After he was locked up, his family contacted me to discuss what had happened. They did not understand why he had entered a guilty plea, nor did they understand why he was in prison after his lawyer told him he would get probation. They also wondered how he could be convicted of a charge that was so old, as the offense happened nearly 20 years ago. While there is no statute of limitations on sex offenses in some situations, in this man’s case the charge had to be prosecuted within three years or it was time-barred. Thus, his court-appointed lawyer let him plead guilty to a charge that he could not be convicted of at trial.

We filed a Motion to Withdraw Guilty Plea on his behalf, but it was denied by operation of law before we could get a hearing. So we took our challenge to his conviction to the Alabama Court of Criminal Appeals, where they agreed with us that if the event happened that long ago then he was no longer subject to prosecution. They remanded the case to the trial judge to make a determination on when the event happened, and upon learning of the date of the incident the trial judge properly dismissed the case. Dismissal of the charge also meant that the sheriff’s department had to remove the defendant from the Alabama Sex Offender Database.

In that man’s case, dismissal of the guilty plea meant that some other charges he had pending were reinstated. Because I only handle appellate cases now, I referred him to Richard Jensen to handle the trial of the remaining charges. Sex crimes defense is a special interest of Richard’s, so I believed he would be the best attorney to retain to handle our client’s remaining charges. As it turned out, the alleged victim in those charges had already recanted the allegations before the man had even entered his guilty plea in the original plea bargain. As a result, under pressure from Richard the prosecutor ultimately agreed to drop all charges against the defendant.

Jensen’s book is an entertaining and informative read for anyone interested in how the criminal court system works, particularly in the State of Alabama. If you want to get the inside scoop on cops, criminal defense lawyers, judges, prosecutors, and the overall court system, I strongly recommend you read Jensen’s book. You won’t be disappointed. The book is available through Amazon.com or through other book retailers. The section discussing our mutual client’s case begins on page 62.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

If a default judgment has been entered against you in Alabama, there is a procedure for having that judgment set aside. Rule 55(c) of the Alabama Rules of Civil Procedure gives trial court judges the discretionary authority to set aside default judgments. The starting point in having the default judgment vacated or set aside is, not surprisingly, to file what is called a Motion to Set Aside Default Judgment. This should be filed as a verified motion or with supporting affidavits whenever possible.

In the case of Kirtland v. Fort Morgan Authority Sewer Services, Inc., 524 So. 2d 600 (Ala. 1988), the Alabama Supreme Court established clear guidelines to assist trial courts in deciding whether to set aside a default judgment. In Kirtland, the Alabama Supreme Court said the trial court should consider three factors:

1. whether the defendant has a meritorious defense;
2. whether the plaintiff will be unfairly prejudiced if the default judgment is set aside;
3. whether the default judgment was a result of the defendant’s own culpable conduct.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”