We specialize in appeals of family law matters, and have handled appeals involving permanent alimony, contested adoptions, grandparent visitation rights, allocation of retirement benefits, and so on. In addition, we have filed and responded to petitions for writs of prohibition and petitions for writs of mandamus involving allegation of errors by trial judges in regard to motions for disqualification and in regard to a motions for new trial.
We also work with trial counsel to help prepare for trial when a party is concerned up front about the need to appeal an unfavorable ruling. It is very important, as you prepare for a trial, to be preparing for appeal at the same time. Without an appropriate record made in the trial court, there cannot be any meaningful appellate review. We can help trial counsel recognize the need for additional evidence, help prepare questions to bring out facts or admissions from witnesses, and help prepare memoranda of law to present to the trial judge. Sometimes preparing for an appeal is the best way to win a trial.
What is an appeal?This is a request to a higher level court to review the findings and orders of the trial court judge because you believe that judge has made an error. In family law matters, trial judges are required to make findings of fact and rulings of law; and it is possible that a judge has made a mistake in either one or the other. However, the vast majority of appeals are affirmed; that is, the appellate court determines that no important mistake was made. So, the decision of whether to appeal is an important one and sometimes can be a hard one to make.
How do I make the decision of whether or not to appeal?
We recommend that you and your trial attorney meet with us together. This way, we can get a good first look at your case fairly quickly. With you and your trial attorney, we will go over the facts in your case, the evidence that was presented in court, and the issues that the judge was asked to rule upon. Then, we’ll review the rulings that were actually made. We’ll discuss whether the evidence that was presented at trial was sufficient to justify the findings made by the judge, and then look at the statutory and case law that applies in your case to see if it seems like the judge correctly applied the law. Finally, we’ll look at the actual matters that would be brought up on the appeal - to see if they’re important enough to justify filing an appeal. At that first meeting, we can probably make a pretty good determination of whether it’s worth filing the appeal. Or we may all feel we need more information, and we’ll get back together a second time. As we mentioned, it can sometimes be a hard decision to make, and we don’t want to rush into filing an appeal without enough information.
How long do I have to decide whether to appeal?
The Notice of Appeal has to be filed within 30 days of the rendition of the order you want to appeal. Please be sure to talk with your trial attorney or call us to verify the date, so you don't accidentally miss this very important deadline.
How does an appeal work?
An appeal is started by filing a Notice of Appeal with the clerk in your trial court. Then, the petitioner (the party who files the appeal) has 70 days to file his or her brief in the appellate court. The other party then has 20 days to respond, and the petitioner has another 20 days to reply. Briefs are written arguments, which describe the errors the party believes were made by the trial judge, point to the evidence presented which bolsters their arguments, and include references to the applicable law that may have been misapplied by the trial judge. There is no court hearing, and the parties will not testify again or provide any new evidence. This is strictly an opportunity for the appellate court to review what happened in the lower court, and is not an opportunity to re-try the case.
How long does an appeal take?
There are certain deadlines which must be followed in filing an appeal. It is very important for a party to check with his or her attorney to be sure when the deadlines are and not to miss them. It is usually approximately four to five months after an order is rendered in the trial court that all the briefs and other material are in to the appellate court. After that, the parties can only wait for a ruling from the appellate court. Sometimes a ruling is obtained in a few weeks; more often it will be several or even many months.
What happens if the other party decides to appeal?
The other party will have to get the transcript prepared by the court reporter and provide a copy to you and your lawyer; and the same time periods mentioned above apply. But in this case, the other party will be arguing that the trial judge made errors, and we will be arguing that no errors were made and that the judge’s rulings were correct.
What are oral arguments?
In some cases, the parties may request the opportunity to provide oral arguments to the appellate court. In these, the appellate attorneys appear in person before the court to answer questions regarding their written briefs, to discuss the applicable law, and so on. These are not requested or required in every case, but they are a good opportunity to focus on the most important issues in your appeal.
What happens if I win an appeal? Or if I lose?
If the appellate court determines that the trial judge made some mistakes and that those mistakes were important enough to affect the outcome, then the appellate court may issue a ruling which corrects and changes the outcome. Or the appellate court may send the matter back to the same trial judge for correction and maybe for further proceedings. If the appeal is lost - that is, the appellate court decides the trial judge either did not make any errors or that any errors were not important – then the ruling issued by the trial judges is affirmed, and it stands.
How much does an appeal cost?
It is hard to say how much your appeal might cost, but generally speaking, the costs will range from $7,000 or $8,000 up to twice that much or more. Fees and costs will vary and may depend upon such things as how long your trial was (that is, how long the transcript is), how many documents were admitted into evidence, and how many issues you want to appeal. Also, if oral argument is required, then out of town travel and a stay overnight is usually required, and those costs and time are additional.
What if I don’t appeal, or if I miss the deadline for filing an appeal?
If there is no appeal, then the trial judge’s findings and ruling stand as law, and they can be enforced by the court. Or, for some (but not all) types of cases, they can later be modified only if there is a sufficient basis for such a modification.