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Appeals FAQs

What is an appeal?

What decisions can be appealed?

What is appellate law?

What is the first step in the appeals process?

How much time after the trial court enters its judgment do I have to file an appeal?

What happens after the notice of appeal is filed?

What happens to the trial court judgment while an appeal is pending?

Can new evidence be raised on appeal?

How long does it take for the appellate court to rule?

Do I need an attorney to appeal my case?

Can my trial attorney handle the appeal?




 

Q: What is an appeal?

After a decision in a civil or criminal case by a judge or jury, the party who loses has the right to have the matter reviewed by a higher court.  A higher court can overturn a lower court’s ruling if the lower correct was incorrect.  Thus, an appeal is when a party seeks to have a lower court’s ruling corrected.

 

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Q: What decisions can be appealed?

Typically, only final decisions of a trial court can be appealed.  If the trial court makes a ruling which does not end the case completely, you generally have to wait until the case is finished before appealing.

 

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Q: What is appellate law?

Appellate law differs from other forms of litigation in that there is no discovery and no new evidence as the appellate record is limited to what was already presented to the trial court.  An appeal is typically presented to three judges who decide the matter almost entirely on the written briefs.  Appellate law thus demands familiarity with the appellate court procedural rules, legal trends, and persuasive writing.

 

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Q: What is the first step in the appeals process?

The first step is the filing of a notice of appeal.  This document is filed with the trial court.  The notice of appeal informs the trial court that you intend to pursue an appeal.

 

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Q: How much time after the trial court enters its judgment do I have to file an appeal?

Generally, you must file a notice of appeal in the trial court within 30 days of an adverse ruling.  In some cases, you must also file a post-trial motion before you may file a notice of appeal. 

 

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Q: What happens after the notice of appeal is filed?

Once the record on appeal is on file with the appellate court, the appellant (the party appealing the decision) prepares and files the opening brief.  The appellee (the party defending the decision) will then have a chance to file a respondent’s brief, addressing the arguments set forth in the opening brief.  Finally, the appellant will then have an opportunity to file a reply brief.  After briefing is completed, the court may grant oral argument.  If so, the oral argument is typically in front of a three judge panel.  After oral argument, the court will take the matter under advisement and prepare its decision.  The court will then issue its decision, either affirming or reversing the trial court.

 

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Q: What happens to the trial court judgment while an appeal is pending?

The trial court’s order generally stays in place and can be enforced during the appeal.  Thus, if a judgment was entered against you, your opponent can collect on the judgment.  You must ask the trial court to stay the judgment and post an appeal bond.

 

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Q: Can new evidence be raised on appeal?

Appellate courts virtually never consider new evidence on appeal.  Any evidentiary issues need to be raised with the trial court before an appeal is made.

 

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Q: How long does it take for the appellate court to rule?

The process can be lengthy.  Once the record is complete, the briefs are filed, and argument is heard, the case is assigned for review and consideration.  It can take a year between the time an appeal is filed and a decision is issued.

 

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Q: Do I need an attorney to appeal my case?

Parties can represent themselves (pro se) on appeal.  However, given the procedural and technical requirements of an appeal, going pro se is not advised.

 

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Q: Can my trial attorney handle the appeal?

There are advantages and disadvantages to using your trial lawyer.  The trial lawyer does not have to become familiar with the case, like a new attorney would.  Conversely, a new attorney brings a fresh perspective to your case.  Additionally, as appeals can be lost for not complying with procedural requirements, it is critical to have an attorney who understands the appellate rules.

 

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