The Nature of Appeals

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by Thomas P. Malone
Summer 2009 In Brief Newsletter

So, the long hard battle of the law suit, which you thought would never end, is finally over.  It’s time to put that chapter behind you and get on with your life. Right?

Not so fast. You may be shocked to learn the other side has filed an appeal and you have a year or so of lawyers, courts and judges ahead of you.

The good news? Appeals are very different from trial court level lawsuits and do not involve the parties at all. Further, there is no more of the interminable discovery to endure, and pay for. Appeals are for the lawyers to fight, not the parties.

Now for the “bad” news: appeals are time consuming, expensive and may change a victory into defeat.

Appeals to the Court of Appeals are a matter of right for an aggrieved litigant.  Any party who does not like the outcome of the trial is entitled to appeal…if they do it right and on time.

The rules of appeals are arcane and rigid.  They must be followed to the letter or the appeal may be dismissed. Generally, the appeal must be “perfected” within 60 days of the Order or Judgment from which the appeal is taken.  Once the appeal is taken, a timetable starts to run, a timetable that is immutable, but only for the litigants.  The Court of Appeals itself operates on its own, unpublished, unknown and variable timetable.

The steps in the appeal, after it is taken, are; a transcript of the proceedings is ordered and obtained from the court reporter, the Appellant’s (the party appealing) brief is written and filed, the Respondents (the winning side at the trial level)brief is done; then the Appellant gets another opportunity to submit a “Reply Brief.” These items are subject to the timetable contained in the Rules of Civil Appellate Procedure.

After this is complete, the parties wait for the Court of Appeals to announce a date for Oral Argument. This is often, but no always, within six months of the filing of the last brief. After Oral Argument the Court “takes the matter under advisement” and usually (but again, not always) issues an Opinion within 90 days.

Most appeals cost somewhere in the neighborhood of $10,000 to $15,000 depending upon the complexity of the case and the number of issues raised by the Appellant. Simple cases can cost less and complex, difficult cases can cost much more.

It is possible to “stay” the effect of the trial court’s order pending appeal but not automatically.  Normally, if the effect of the trial court is to compel payment of a money judgement, it is necessary for the Appellant to buy and file a “supersedes bond” in order to avoid collection efforts by the prevailing party during the appeal.  Those bonds must be in the amount of the judgment and can have impressive costs.  In fact, purchasing a bond can easily be the most expensive part of the cost of appeal.

The bottom line is, if your case was won in the trial court, you many not have an option regarding an appeal: that is a decision for the losing party.  If you lost, however, an appeal is possible but only after careful consultation and consideration.

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