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There is typically one of two avenues by which to appeal a final judgment or non-final order. The first is to complain there was a misapplication of the law by the judge (also known as an error of law). The second is to make the argument that the record did not reveal substantial competent evidence to support the judge’s conclusions.

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An error of law allegation is pretty straight forward. The basic premise of such an argument is that the judge failed to account for some provision of the law in making his or her decision. The appellant (the person seeking to reverse the decision) will support his or her argument with statutes, procedure and case law citation, and explain why the trial court either misapplied the existing legal standard or failed to take account of certain criteria.

The evidentiary argument, however, is slightly more vulnerable. For example, both the appellate court and the law give broad discretion to the trial judge to make certain conclusions about the credibility of witnesses and the interpretation of testimony – which means that the judge has broad authority to assess a witness’ credibility and to make conclusions about the value of testimony.

The other means by which to attack the judge’s reliance upon the evidence is through the record, itself. If the pleadings, the exhibits, and the un-refuted testimony reveal that the judge did not have adequate basis upon which to premise his or her decision, then there would be room to make a challenge.

These procedural limitations make is so that the success rate of an appeal is quite slim. On average, about 10% of appeals will be remanded to the trial court. The majority, however, will be “per curiam affirmed,” which means that each of the three judges on the appellate review panel agrees that there was no error by the trial court that merited remand or reversal.

There is a second common misconception – and that is the belief that the appellate court will substitute its own decision making for that of the trial court. This is inaccurate. What the appellate court will do is issue what’s called an “opinion” of the trial court’s decision making, explaining what errors it sees and why, and directing the trial court to certain corrective actions. This may sometimes include having further evidentiary hearing before the original trial judge, but more often than not, the corrections require only to revisit the existing record and to adjust according to the opinion or “mandate” issued by the appellate court.

Bearing all this in mind, is it worth it to appeal your case? Perhaps. Whether or not an appeal is viable is a case by case analysis, but before you chose to pursue an appeal, you should engage an attorney who is willing to discuss your case, including the potential premise of your appeal brief, before retaining their services. This will help to ensure that the effort is worth the investment.

Other things to know:

  1. Prior to filing an appeal, it is proper form to file a motion for rehearing with the trial court, which effectively gives that court the first chance to correct its alleged error. Motions for rehearing typically must be filed within 15 days of the date the judgment or order is signed, should allege either an error in law or a lack of competent evidence argument (as outlined above), and explain what, specifically, the moving party takes issue with in the ruling.
  2. A timely rehearing motion otherwise tolls (expands) the time to file an appeal. If your motion for rehearing is untimely, it not only could be summarily denied, but the appeal window will not be expanded.
  3. Within 30 days of a judgment or an order (or an order on a timely motion for rehearing) the appellant, or person seeking the review of the judgment or order, shall file his or her “notice of appeal” with the trial court. Thereafter the cause will be referred to the appellate court level, a case will be opened, and the schedule will be set.
  4. The opposing party to an appeal is known as the “appellee,” and in most cases the appellee is not necessarily required to file a response to an appeal. However, if the appellee wishes for the decision to be upheld, it is a good idea to defend against the appellant’s allegations by filing what is known as an “answer brief.”
  5. The appeal process can take anywhere 18 months to one year and may or may not include oral argument before the appeal tribunal. This oral argument, however, will be legal argument by the lawyers only and will not involve testimony by the parties.
  6. Most of the major elements of the appeal will be argued exclusively in writing. There is an extensive amount of work involved in review of the record, in research, and in drafting and editing of arguments, which is why many appeals have a higher retainer rate than the average trial case (for example, at Rechel & Associates our average appellate retainer ranges between $8,000 – $10,000 depending upon the complexity of the case).
  7. At the end of the appeal, if any remand or reversal is granted, then the next step is for the matter to go back before the same trial judge with what is called a “mandate.” The trial court must act in accordance with whatever the mandate directs. A mandate is not an automatic override or substitute decision, however, and in most cases the matter will end up back in front of the same judge.