How Appealing!! Taking Your Case to the Next Level


March 31, 2014 by sandyonyourside

US_Supreme_Court3_crop Appealing a case is stressful and confusing.  Even for lawyers. If you’re representing yourself on appeal, be prepared to devote tons of time and energy to the process.  And be prepared to lose.  The vast majority of civil appeals are unsuccessful.  Not to mention costly.

Why bother, then?  Because when an appeal is successful, the payoff can be huge.  You can get a new trial, for instance, or have a judgment against you reversed.  You can be awarded more money in damages than you received at trial, or wind up having to pay less the money award against you.  You can get custody or possession of the apartment or get an injunction that you were denied in the trial court.  If you have a right to appeal (this isn’t automatic in every case), the benefits may far outweigh the hassles.

It’s impossible to cover all aspects of the appeals process in one post.  Appeals rules are complex, and they differ from state to state, court to court, county to county, and subject matter to subject matter.  Not to mention the separate sets of rules for appealing in federal court.

What I can do is help demystify the process and offer guideposts for further action.  You may want to consult other general sources, such as publications by Nolo Press, for more information.  But there is no substitute for identifying, understanding, and following the specific appellate rules for your situation.  Your state court website, a law library, a local public library, and the appeals court clerk’s office are all good resources for the information you will need.  Some state appeals courts also publish self-help pamphlets for self-represented litigants.


1.     What’s the difference between an appeal and a trial?

Just about everything.  In a trial, you present evidence to one judge or a jury.  Then the judge or jury decides who wins and by how much.

Appeals courts exist to ensure that what happened at the trial level was correct and fair.  More than one judge will sit on your appeal.  These judges,, as a rule, examine only the compilation of written documents from the trial (the “trial record”) that the appellant and appellee bring to their attention.  Appeals court judges do not look at new evidence or consider new arguments. There are no witnesses and sometimes there are no oral presentations at all and the case is “decided on the papers.”

2.     What kinds of things can be appealed?  

You can appeal “errors of fact” and “errors of law.”  Errors of fact include things like a judge or jury deciding a case one way when the evidence points the other way.  Errors of fact are the hardest to prove, because the appeals judges will give every benefit of the doubt to judge’s or jury’s view of the evidence.  Just because the case could have come out another way, or a certain witness might have been lying, for example, is not reason enough to overturn the trial judgment.  You have to show that the factual error was completely, absolutely, unmistakably beyond the pale, and that the mistake could have affected the outcome.

You’ll have a better chance of succeeding on appeal if you can argue an error of law, that is, if you can show that the judge applied the wrong legal principles to your case.  For example, you may be able to show that the judge used the wrong legal standard in admitting or refusing to admit evidence.  Or that the judge misinformed the jury about the legal principles they were required to apply in deciding your case.

Even if there were no errors of law throughout the trial, you may be able to convince the appeals court to modify or eliminate existing law because the law no longer fits the circumstances of modern life.

Whether you argue factual or legal error, or both, be prepared to do serious time in the law library.  You’ll need to know the standard of review that governs how the appeals court will look at each issue you raise on appeal.  And you need to identify and understand the main cases concerning each of these issues.  Your appeals brief must cite and discuss these cases, as well as the cases that seem to go against you.  (You will also be asked about these cases and legal principles in any oral argument.)  Your appeals brief will likely be much longer than anything you submitted at trial (typical length restrictions are 30-50 pages) to give you the opportunity to discuss every issue in depth.  Bottom line: Be prepared to become best friends with the law librarian.

3.     When do I have to appeal?  

You will usually have a very short time frame after getting the trial court judgment to notify the court that you want to appeal–30 days or maybe less–by filing a short document called a “notice of appeal.”  If you file the notice of appeal late, you may be out of luck, and permanently lose the right to appeal.  Consult your local rules of appellate practice for timelines, and err on the the side of early rather than late.

4.     What do I do after filing the notice of appeal?

Get busy.  First, you have to start the process of getting the trial record ready for appeal.  The trial record is the written collection of all of material from the trial that you want the appeals court to examine.  The trial record can consist of, for example, papers you and/or the other side filed, a judge’s rulings on exhibits that were offered into evidence, jury selection procedures, objection to jury instructions, pretrial motions, etc.

One thing you will almost surely need to include in the record is the official transcript.  The transcript is the word-for-word record of what took place at trial or in a motion session. An official transcript is one that has been certified by a transcriber or court official under oath to be true and accurate.

It can take a long time to get the transcript, and you will be charged for it.  Procedures for obtaining the official transcript vary greatly.  Check with the trial court clerk’s office about what you need to do.

The second thing you should do as is to start thinking about the arguments you want to raise on appeal and doing the necessary legal research.  What were the there serious errors that affected the outcome of the trial?  Were these mistakes objected to at trial, and was the objection “preserved” (kept active) for appeal?  What do you want the appeals court to do — reverse the judgment, order a new trial, something else?  What are your strongest arguments, and what can you leave out?  There are many tactical decisions to make about how to present your appeal, and you can’t start too soon to shape and refine your arguments.

5.     How long will my appeal take?  

Don’t hold your breath.  It is common to wait two years or more from the time of the trio court judgment to the time of the appeals court judgment.

6.     Are there special rules that apply to appeals?  Yes. The rules of appellate procedure are different from the rules of civil procedure that you used for trial.  You can find the rules of appellate procedure on your state court website, a law library, a local public library, and appeals court clerk’s offices.

WarningThe appeals rules are very specific.  They cover everything from: when an issue is “ripe” for appeal; where you must file the appeal; the timing of the appeals process; assembling the trial record; how long your appeals brief can be; even the specific color you must use for the front page of your appeals brief.  And much more.  Follow these rules to the letter. 

7.     Who will hear the appeal? 

Appeals are usually heard by more than one judge, called a “panel.”  Appeals panels usually consist of an odd-number of judges, and the binding appeals court decision is the decision of the majority.

8.     Is it expensive to appeal?  

Yes, although if you are indigent you may be able to get some or all of the costs waived.

There is a filing fee for the appeal.  And, as I said, the transcript can be costly.  Another big-ticket item is the multiple copies of your appeals brief and the record on appeal that you must file with the court and serve on the other side.

9.     How do I prepare for oral argument?  

Know the facts cold.  Know the important cases cold.  Be prepared to think on your feet.  Then practice, practice, practice.

Usually you will have a very short time (10-30 minutes) to present your case to the appeals panel.  And you’re likely to be interrupted again and again by questions from the judges.  These questions may sound, and be, critical and pointed.  Don’t take it personally.  It’s the judges’ job to probe the weakness of your position.

Practice your oral argument again and again, preferably with attorney pals who can give you informed feedback.  It’s also a good idea to sit in on other appeals court arguments, preferably those heard by your panel, to get an idea of what to expect.

10.     Can I appeal again if I lose my appeal?

That depends.  Usually you have a right to only one bite of the appeals apple; whether you can appeal again is discretionary, meaning you have to petition appeals court judges to take your appeal to the next level.  If you lose your appeal, talk with the appeals court clerk’s office about what, if any, options you have.  The clerk may have sample petitions for requesting a further appeal.

Finally, if you decide to hire an attorney to help you with your appeal, make sure to find someone who specializes in appeals.  The money will be well spent.  And remember that in many states you can hire an attorney to help you with part of the appeal while you do the rest.

‘Til next week,





One thought on “How Appealing!! Taking Your Case to the Next Level

  1. ej416 says:

    Is there really a difference between a lawyer who charges $500 – $600 an hour and one who charges less?


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This blog is for informational purposes only and does not constitute legal advice. Also, it does not create an attorney-client relationship between the author, Sandy Lundy, and any reader or correspondent.

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