SO YOUR CASE HAS BEEN APPEALED; NOW WHAT?

by | April, 2024 | Legal News

You’ve gone through the long process of investigation, discovery, negotiation, and trial. Perhaps you’re ecstatic about the outcome of your case at trial. Perhaps you’re disappointed in the court’s ruling. Regardless, you might find yourself beginning a new process: the appeal.   What exactly is an appeal? Appellate courts are court of error. They exist […]

You’ve gone through the long process of investigation, discovery, negotiation, and trial. Perhaps you’re ecstatic about the outcome of your case at trial. Perhaps you’re disappointed in the court’s ruling. Regardless, you might find yourself beginning a new process: the appeal.

 

What exactly is an appeal? Appellate courts are court of error. They exist as a check on the trial courts to make sure that the law was applied correctly. For example, errors might include the trial court allowing improper evidence to be presented, or submitting incorrect jury instructions, or making a ruling that does not follow the law. In situations like those, the error might be significant enough to warrant a new trial or the reversal of the outcome of the case. The purpose of an appeal is not to retry the case. Attorneys do not present facts to the appellate courts, and there is no jury.

 

Appellate courts will only consider distinct questions of law that must be raised by the attorneys in the appeal. Attorneys who handle appeals must carefully consider which errors to raise because not all errors are created equally. Of course, both attorneys and judges make mistakes. Many of those errors are considered harmless, meaning they don’t affect the outcome of the trial. In rare cases, an error does rise to that level, or it is an error of law that must be corrected. Those are the issues that should be raised by the attorneys in an appeal.

 

There are many rules associated with appeals. An attorney cannot raise a claim of error for the first time on appeal. Instead, any complaints must have been raised at trial so the trial court could fully consider the issues and correct any errors. You may have heard trial attorneys (or appellate counsel at trial) talk about preserving issues. Issues must be preserved—brought to the judge’s attention—in the trial court for the appellate court to consider them. This is why it is so important to either have trial counsel who are well versed in how to preserve these matters or to engage appellate counsel to monitor the trial to flag appellate issues so the trial attorneys can focus on convincing the jury you should win.

 

Once the case has been appealed and the record from the trial court (the transcripts from trial and other documents the trial court considered) has been delivered to the appellate court, the parties must brief the case. This is where the appellant’s attorney—the side who brought the appeal—raises the errors discussed above. After the appellant’s attorney files a brief arguing their side of the issues, the other side—known either as the respondent or appellee, depending on the jurisdiction—files their own brief, typically arguing that the trial court made no errors (they won the case in the trial court, of course they want that decision to stand). Then, the appellant gets a final opportunity in a reply brief to address the other side’s arguments.

 

After the briefing is done, the appellate court typically sets the case for oral argument, where the attorneys will present their case a panel of judges—usually three, but sometimes more—and the judges will ask the attorneys questions about the case.

 

Once the case has been argued, the appellate court will consider the briefs and arguments and make its decision. After that decision is made, if either party is dissatisfied, that party case ask a higher court—either the state supreme court or the U.S. Supreme Court—to review the appellate court’s decision. Appeals to higher courts are rarely accepted. If the higher court accepts the case, the parties go through the briefing and argument process again in that court.

 

This procedure is standard in both state and federal appellate courts. There are, of course, nuances in each jurisdiction. Appellate courts are heavily rule based, so it is important that appellate counsel understand the particular rules of the jurisdiction where the appeal is located. Overall, the appellate process is long. The briefing process alone typically lasts a minimum of three months, and extension of time are often granted. Argument tends to be set anywhere from a month to several months after briefing is completed. And there is no time limit for the court to issue its decision—sometimes it is in a week, sometimes over a year. Even though the process is long, appeals are an important part of the litigation process. Whether you are appealing or defending a judgment in your favor, complying with the appellate rules and thoroughly briefing and arguing the nuances of the law is necessary to obtain a positive outcome.