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Appeals 101: What a Client Should Know

August 20, 2012

By the time you have reached a point in your lawsuit where the term “appeal” becomes relevant to you, you probably already feel like you have a sense of how the legal system works. Appeals are quite a bit different because, for the most part, they serve a different function in the system.

At the trial court level, where your case is probably pending, the court considers evidence to determine the facts and then applies the law to those facts to reach a decision. Depending upon where in the process of a lawsuit you are, there might be a jury involved or it may be just a judge. The evidence that is put before the Court might include things like live testimony or sworn written statements. The Court evaluates all of the evidence submitted to decide what is most believable and then determines how the law says that a question with those facts must be answered. The Court formally answers the question by issuing an Order.

If a party thinks that the decision made by an Order was wrong (according to the law), that party usually has the right to appeal the decision to an appellate court. This means that the appealing party is asking a new Court to review the decision made by the trial court. For the local trial courts (e.g., State Supreme Court or County Court), appeals are made to the Appellate Division, Fourth Department, which is in Rochester, NY. Lawyers often refer to this Court as simply the “Fourth Department.” Each appeal that is perfected is considered by a panel of five judges. (The Appellate Division judges are referred to as “Justices” and are appointed to their positions by the Governor.)

The party who is appealing the decision is called the “Appellant,” and the opposing party (who, generally is satisfied with the decision and is not seeking that it be changed) is called the “Respondent.” In order to properly take an appeal, the Appellant (usually through his or her attorney) must file a Notice of Appeal at the County Clerk’s Office and serve a copy of that Notice of Appeal on the opposing party’s attorney. This must be done within a certain time frame – thirty days from the time the appellant’s attorney is served with a copy of the Order that will be appealed.

Note that your attorney may recommend that a Notice of Appeal be filed in your case even if it’s not clear yet whether the decision should be appealed. This is sometimes referred to as “preserving your right to appeal” because if the Notice of Appeal is not timely filed, you lose your automatic right to appeal.

Once a Notice of Appeal is filed, it is the Appellant’s burden to “perfect” the appeal. This means filing the record on appeal and a legal brief with the appellate court within the appropriate time. In order to do this, the Appellant’s attorney must first settle the record on appeal with the opposing parties. The “record on appeal” is a compilation of all of the legal papers that were in front of the trial court that made the decision being appealed. Sometimes attorneys disagree about what should be included in the record on appeal, and when this happens, the Appellant’s attorney may need to make a motion to the trial court to ask the court to help settle the dispute.

Once the record is determined, the Appellant’s attorney files it along with the Appellant’s Brief with the Fourth Department. (Multiple copies of the record and brief are required to be filed, which is part of the reason that appeals can be costly.) The “Appellant’s Brief” is the written legal argument that the attorney makes to try to persuade the appellate court that the trial court somehow got its decision wrong. After the Appellant’s Brief is filed, the opposing party can file a “Respondent’s Brief” to set forth his or her argument that the trial court’s decision should stand. The Appellant gets one chance to respond to that argument in a “Reply Brief.”

Once all of those papers are filed with the appellate court, the case will be scheduled for oral argument, typically several months from the time the papers are filed. This is an opportunity for the attorneys to appear in front of the Court to make their respective arguments and/or answer any questions that the Court may have. It is different from the experience you may have had with the trial court because the appellate court cannot consider any new evidence – there is no testimony or submission of additional facts. The appellate court can only make its decision based on the contents of the record on appeal because that was the information on which the trial court based its decision.

Ordinarily, a few weeks after oral argument, the Court mails out its decision regarding the appeal. The Court may affirm the trial court’s order (in other words, let the order stand), reverse it (meaning the Court agrees with the Appellant that the trial court’s decision was incorrect) or otherwise modify it.

According to a New York State Bar Association article summarizing the most recent statistics available (2010), in the Fourth Department, 67% of the appeals from trial court orders in civil cases were affirmed, 17% were reversed, and 16% were modified. While these figures demonstrate that the probability is greatest that the trial court’s decision will ultimately not be changed, there are also a significant number of cases in which some changes will be made by the Fourth Department. Whether you are an appellant or a respondent, it is helpful to have these odds in mind when you are making the decision with your attorney about whether to appeal or how to respond to an appeal filed by another party in your case.