What is an Appeal

In plain words for real people: What the heck is an appeal?

If you have a court case you will initially file in what we call the “lower” court. Depending on what state or federal court, this may be called the district court, trial court, court of common pleas, etc. It is the court that first hears the case. Certain case can resolve by way of agreement between the plaintiff(s) and defendant(s). Other cases will go to trial and a judge will decide. I’m oversimplifying, of course, because nothing is easy in the law.

What do you do if you don’t like the decision? Well… you can file an appeal. An appeal is when you ask another judge (or panel of judges) to take a look at the original decision because you think the lower court made a mistake. There are two general categories of mistakes. There can be a mistake as to the facts of the case and there can be a mistake as to the application of the law. Sometimes, the appeal includes both.

Let me try to give you some context. You have a medical malpractice case. The defendant(s) file a motion for summary judgment. This is a motion that asks the trial court judge to take a look at the facts and evidence in the case and make the legal determination that the plaintiff (you) cannot possibly win. But in making the decision the judge says a bunch of stuff that is factually wrong or talks about a bunch of legal cases that are really not the same or similar to your case. You can then submit that order (along with a bunch of other paperwork) to the higher court or appellate division.

In different states the appellate division is called different names. In New Jersey, it is the appellate division; in NY is it the State Court of Appeals; in federal court it is the United States Court of Appeals for the ___Circuit or USCA. Every state has a different procedure. Every state has a different set of laws and rules that apply. Although, in reality many are the same, you still need an attorney to handle the appeal that is familiar with the specific court that you are filing your appeal in.

When you file an appeal, you have to tell the appeals court the what, why, and how, the lower court messed up. That may be an ‘abuse of discretion’ (the trial court judge was just crazy) or a ‘mistake of law’ (the trial court judge didn’t use the right legal principles). Either way an experienced appellate lawyer will be able to phrase your arguments in a way that is respectful. If you win the appeal then your case may very well be heard by the same trial court judge again, so it is best not to attack.

As with any case, there are three questions that a client will ask about the process and here is what I tell them in response to all three: IT DEPENDS! But there is a reason,

How long will it take? From the date of the filing to the end of the appeal generally takes 18-24 months. There are fewer judges that sit on appeals courts. Even though they hear fewer cases than the trial court judges, the cases are more complex. The life of an appeal is generally the following,

File appeal. Usually at this time transcripts (if applicable) are ordered and they take about 30 days to get.
A scheduling order is issued. Or perhaps there could be a settlement conference to try to resolve the issues.
Each side is given dates to file their respective briefs and appendices. If you file the appeal on January 1, the first brief might be due with the court around March 1, but it is common to get an extension of time. Then the other side would also get an extension. By the time all of the briefs are filed with the extended time, it might be August.
Oral argument. Then the case will be scheduled for oral argument. It could take several months to get on the court calendar.
Decision. I once waited 2 years for a decision after oral argument. That is absolutely not common, but it happens. The quickest was the next week – also an aberration. The case had been scheduled and then adjourned at the last minute to do an attorney illness. Then we were rescheduled and snowed out. The court held argument on the phone and we had a written decision the following week. All decisions are written in the form of a mini-narrative about the facts of the case, plus an analysis of the law. This takes time.

In short, when all is said and done it is definitely going to be at least a year, but more likely two years. And yes, while you wait the decision from the lower court is still in effect.

What is it going to cost? A lot. Most attorneys do not handle appeals. The ones that do tend to be specialists and when you think specialist think $$$$ or $$$$$ restaurant. No one wants a burnt steak at Wolfgang’s. If you are thinking about being self-represented at the appeals court… think again. The process is hyper-technical and stacked against those that are self-represented. I started helping self-represented people a few years ago and ultimately found that it was easier for them and me to just handle the case. I like to think that my rates are on the low end and reasonable, but I have seen attorneys charge $750 per hour and up for state court appeals. If you manage to get up to the Supreme Court you could be paying thousands of dollars per hour.
What am I going to get? (Or will I win.) By now you understand why I use the great Magic 8-ball of lawyering (the one where the answer is always ‘It depends’). If you call me to discuss your appeal, I will probably sigh loudly and say something like “It’s complicated.” Appeals are tricky. Sometimes the lower court clearly messed up and the appeals court still finds a way to affirm (or uphold) the decision. If they do overturn (or say it was wrong) the decision, then you may still have to return to the trial court and you may still lose again.

What do you do if you got a decision from the trial court and you think it is crazy wrong? If you have a lawyer, ask that lawyer about the possibility of taking an appeal. If she doesn’t handle appeals (and many lawyers do not) then ask for a referral to another attorney. Do this quickly. There is a limited amount of time for you to file an appeal. If you miss that deadline, you cannot file the appeal. Do not miss that deadline!

Finally, I want to leave you with a bit of appeal lingo. I have tried to use plain language here, but most lawyers are going to throw a bunch of legal terms at you in explaining this. A few common terms that you might here:

Appellee or Appellant – the person who files the appeal
Respondent – the person responding to the appeal
Stay pending appeal – you can file a motion to ask that the decision of the lower court not be implemented until the appeal is concluded
Interlocutory – this refers to an order that is not a final order. Generally, only final orders can be appealed, although there is a process to appeal interlocutory orders.
Motion – a set of documents filed with the court asking for specific relief to be granted prior to the conclusion of the appeal.
Pro se – a person who is self-represented
Brief - the document that tells the court the facts of the case, the law that applies, and the mistakes that you think the lower court made – or if you are the Respondent, why you think the lower court was spot on.
Appendix – a compilation of the documents that the lower court relied upon in making a decision