Appeal

Working with the Courts of Appeals

To appeal to the higher court, you must file a timely notice after a lower court’s decision—30 days is a general guide. You must seek legal counsel to determine your specific deadline and file a timely appeal in that lower court. Failure to file a timely appeal renders the order final and even if the higher court would love to take the case, it cannot.

The Law Offices of Joseph W. Booth have been involved in the appeal process in a number of courts of appeal for several years. The appellate practice is a substantial part of what we do.

Mr. Booth has also lectured on appellate practice, teaching attorneys how to conduct appeals

See our 'Resume’ page for a list of those appeals where the courts of appeal chose to publish their decision. There are many more cases from our office where the courts of appeal ruled, but in doing so the court determined that publication was not necessary because the court’s opinion did not set new precedent or break new ground in legal standards for that jurisdiction. The issues where the court did not publish decisions were, for the clients, just as important as published opinions and legally binding.

This office writes appeals as attorney of record, but also consults with other law offices or private parties in their own appeals. Our clients have included law offices, corporations, and individual parties on several areas of law. 

When the trial court, whether it be a county court in a state system or a federal district court, issues a final order, either party may choose to appeal that decision. There are several issues that need to be considered.

Is the decision is a final decision?

All courts of appeal require that you have exhausted all remedies at the lower court before they can accept the appeal. In family law, that generally means that your court has conducted a trial and issued a final decree. (For example, a divorce was granted or a decree of parentage was issued; but, it may also be a final custody or support order in a post-trial matter.) Determining whether an order is subject to appeal is an individual assessment.

Will the court of appeals will accept the case?

In each state and federal jurisdiction there are commonly two levels of appellate courts, courts of appeal and Supreme Courts. A court of appeal will generally review any final decision of the lower court. A Supreme Court takes only the cases that they chose to take for a variety of reasons; including the unique nature of the issue, or conflicting opinions or standards existing from prior decisions.

What can the court of appeals do?

Courts of appeal do not retry the case, they do not hear new facts or take witness testimony. The appellate court will have differing degrees of authority to review the lower court’s decision, this is called the Standard of Review or Scope of Review. For example, in reviewing a written agreement, contract, statute, etc.; the court of appeal can take a fresh look--understanding the facts in a light most favorable to the prevailing party and rule anew. But for questions like the custody of a child between two fit parents, the court of appeal simply guards against the trial court making unreasonable decisions and if the decision is otherwise a reasonable one, the lower court’s decision will not be disturbed.

In other words, in some cases the chances of reversing a lower court’s decision are much higher (e.g., a review of a law or contract) and in other cases it is unlikely the trial court will reverse the lower court (e.g., a custodial decision) and the Appellant must show that the court ruled 1) unreasonably, or 2) the ruling was not based on the evidence.

There may be several issues that a party wants to take up on appeal, but choosing those issues is complex legal endeavor, and is often done in light of the Standard of Review. One issue may feel more important, but leave the court of appeal with little discretion; another issue may not be so interesting, but grant the court greater authority to second-guess the lower court. The latter is more appealing!

How long it will take?

Appeals take a long time, ones dealing with child custody are expedited; but even then, it is a long and detailed process that takes months. So a custodial decision of a 17 yr old child is unlikely to be appealed, but the custody of a young child may be worth the effort.

Orders under appeal that involve the transfer of property or the payment of money may require the filing of a bond to avoid enforcement during the appeal, filing the appeal dose not always stop enforcement of the trial court’s orders.

The appeal process involves several steps, the party who filed the appeal has to pay for and order transcripts, the attorney has to read everything, then select a subset of those court records, transcripts, and evidence that was proffered at trial to build a record on appeal. Then briefs are written. The other party, the Appellee, then has 30 days to write a brief using all of the resources in the record on appeal. Both sides often receive extensions to file the brief. Finally in some cases the party filing the appeal will reply with a short response to new factors or issues brought up in the Appellee’s brief but that Reply Brief is restricted to those new issues and limited to fewer pages.

Then there is usually a gap of a few months before the court dockets the matter for oral arguments.

After oral arguments, the court will decide and issue a written response. This can take anywhere from a couple of months to more. The reasons for the delays are many.

How much will it cost?

Appeals are expensive, there is no getting around that issue. Estimating the cost of an appeal without knowing the nature of the case is impossible. At a minimum, estimating the cost of an appeal begins with a detailed consultation. Contact our office for scheduling a consultation, these initial consults are usually done for a flat fee, after the initial consultation we have a better idea of whether an appeal is advisable, and the sort of factors that will effect the cost. Even then, it is only fair to note, the costs can only be roughly estimated.

The experience of the appellate counsel. More experienced attorneys may charge a higher hourly rate, but experience in the area of law under appeal and experience in appellate practice may increase efficiency and effect the prognosis of success.

The court of appeal has the same authority to award judgments for the fees and cost of an appeal as the lower court had. Attorney fees are only awarded by either court when the statutes allow it and when a proper request was made. But beware: in appellate practice such awards are more infrequently granted and are decided with the final decision; therefore, the party must fund the appeal and request reimbursement.

Because the courts of appeals rule from the record on appeal, and every statement of fact must be cited to the record on appeal there is work to be done. It is a fresh look at the case through the record, so there is actually some advantage for an appellate counsel to have not been the trial lawyer.

To be the person who files the appeal costs significantly more than to defend the appeal filed by another. Filing the appeal costs more because the Appellant is responsible for paying for transcripts, the work involved in mining a large set of data (records, transcriptions, and evidence) and organizing it into a story. The party responding to the appeal avoids some of those costs and effort.

Appeals are an advanced area of legal practice. They involve specialized knowledge and experience in a court most attorneys never see, these courts have individualized rules of procedure. More importantly, appellant practice is hard work. Counsel must read, organize, conduct legal research, and then consolidate a unique set of facts into a story first and a persuasive argument second. In this office that may involve building a database, drafting timelines, and organizing information well before drafting a brief begins.

This is the sort of research and writing that cannot be embarked upon a few days before a deadline. Experience is valuable. And asking a skilled advocate to set aside days of time to focus on research and writing, is a serious commitment.

While there is no question that our trial courts are staffed with experienced, skilled, and knowledgable judges; writing for a court of appeal is “graduate” level work with an audience of jurists who review appeals filed by authors of all skill levels and have learned to have high expectations.

The skill set of an appellate attorney is unique, and the client needs to assess the skills, experience, and availability of counsel before investing.
Under the law attorney fees are determined after reviewing these factors:

• time & labor involved; novelty/difficulty; skill to perform properly;

• whether representation would preclude lawyer from other employment;

• customary fee for similar services;

• amount involved or risks;

• time limits imposed;

• nature & length of lawyer-client relationship; and,

• experience, reputation, ability lawyer.

The prospect of settlement

The costs, delays, effort, and risk all weigh against both parties and cases often settle during the appellate process. It is not uncommon for a matter to be resolved part way through the appeal process. We strongly support the prospect for settlement throughout the process.
As with all retainers provided to this firm--unless a very unique and well considered written agreement says otherwise--any unused retainer will be refunded to the client whenever the representation terminates for whatever reason.