The 5 Steps of the Appeals Process

The 5 Appeal Process Steps

So you’ve had a judgment entered against you – now what? Well, whether your judgment involves damages or an injunction, child custody or a conviction, every appeal goes through a similar process. In this article, we’ll discuss the five major appeal process steps.

Step 1: Hiring an Appellate Attorney (Before Your Appeal)

One of the biggest mistakes litigants make is filing their appeal before hiring an appellate attorney. Believe it or not, sometimes you don’t want to appeal a judgment against you immediately. In fact, by filing your appeal too soon, you might be throwing away your best chance to get out from under an adverse judgment.

That’s not the only danger: trial attorneys unfamiliar with appellate practice may not know how to secure your appellate rights. This is why it’s so important to contact an appellate attorney as soon as you think you may need to appeal.

Most of the major missed opportunities that occur before your appeal involve what is known as “preservation.” It’s important to know that an appellate court will only consider arguments that were brought to the trial court’s attention. This means that for certain types of errors, for example those that show up for the first time in the judgment, you may need to file a motion for rehearing. This post-judgment motion gives the trial court a chance to rule on your arguments, so the appellate court can consider them later. If you don’t do this, you may be out of luck when you appeal.

But take heed ­– a proper motion for rehearing will extend the time you have to file your appeal, while an improper one won’t. So you should make sure, before you file, that the motion is appropriate. Otherwise, you might miss your only shot at an appeal.

Another major missed opportunity before appeal occurs during trial. It may surprise you, but many trial attorneys aren’t aware that in order to preserve some of the arguments made during trial, they need to file a motion for new trial after the trial is over, to give the trial court a chance to rule on them again.

In fact, your trial attorney may not even be aware of the proper way to make these arguments during trial. For example, they may not know the level of specificity required when requesting a directed verdict. It’s not their fault – even experienced trial attorneys can’t be expected to know all the finer points of appellate practice. After all, that’s what appellate attorneys are for.

These are just a few of the ways that appellate attorneys can maximize your chances of success on appeal – before you even appeal! In short, if you think you may need to appeal tomorrow, the time to hire an appellate attorney was yesterday. Your appeal may depend on it.

Step 2: Filing the Notice of Appeal

You’ve hired an appellate attorney, and your attorney has made sure you’ve preserved your appellate rights and arguments. Now it’s time to file your appeal.

While it sounds simple, it can get complicated. For instance, sometimes what looks like a final appealable order is not actually final or appealable. Or, what looks like a nonfinal non-appealable order is in fact an order that can be appealed – meanwhile, the deadline for appealing may be ticking. If you miss these deadlines, an appellate court can’t take your case – no matter what type of errors have occurred.

What to do? Make sure you’ve hired a knowledgeable appellate attorney who knows the difference between an order granting summary judgment, a final order of summary judgment, and an order granting summary judgment with words of finality. It can get complicated, and that’s why it’s so important to consult an appellate attorney the moment you expect a ruling you might want to appeal.

Step 3: Preparing the Record on Appeal

An appeal is not a new trial. The appellate court won’t accept any new evidence, won’t take testimony, and there won’t be any evidentiary hearings. That means that the court is limited to considering the evidence, testimony, and documents that were filed in the trial court. It also means that there are steps you’ll want to take during trial to make sure that you create the best record for a potential appeal.

Generally, the trial court clerk creates the record from the docket, includes the standard filings, and sends that to the appellate court. But caution is needed at this step – some documents that may be vital for your appeal may not be included in the standard filings. Even worse – although it’s rare – sometimes the trial court clerks make mistakes and simply leave out required filings.

For the most part, errors in the record can be corrected through supplements. But this takes time, and appeals are already lengthy proceedings. The best idea is to get it done right the first time. After reviewing the docket and the appealed orders, a qualified appellate attorney can direct the clerk as to what needs to be included in the record, saving you time and money in the long run.

You may also need transcripts of any relevant hearings – an appellate court won’t consider arguments made at trial or during a hearing unless it can find them in a transcript.

Again, this is why it’s important to consult with an appellate attorney even during trial. For example, many trial attorneys know just enough about appellate practice to “know” that you don’t need a transcript to appeal a motion for summary judgment – so they won’t order a court reporter to appear at the hearing.

While for the most part this is true, depending on the nature of the hearing, the lack of transcript may actually prevent appellate review. Let’s say that during a summary judgment hearing your attorney decided to challenge an affidavit filed by opposing counsel. If your attorney hadn’t made that argument in a filing, an appellate court won’t consider it without a transcript.

What to do? During trial, after trial, and on appeal you should be working with an appellate attorney to make sure that you’re creating a record that is favorable to your case. 

Step 4: Researching and Writing Your Appeal

To present your case to the appellate court, your appellate attorney will research and write an appellate brief. This is your only real chance to fully explain to the appellate court why the case should be reversed. If your argument is not included in the first brief, it generally won’t be considered.

First, your appellate attorney will discuss your case with you and your trial attorney, to find out why you’re appealing. Often, litigants will know exactly why they want to appeal – but there might be other errors, lurking in the record, and it takes a knowledgeable appellate attorney to find them. That’s why an appellate attorney will review every page of the record on appeal and will read every line of every transcript.

From the point of view of an appellate court, a trial is a fast-moving free-for-all – where attorneys and judges make snap judgment after judgment, where everyone does the best they can in the moment. In short, trial court errors come thick as hail.

But not all errors are created equal. Some may have been in your favor, and some just don’t amount to much. The real work isn’t finding errors – it’s arguing that the outcome you don’t like was the product of an important error that altered the outcome of the case.

Often, the real argument lies in whether these rulings were significant enough to warrant reversal, for example, whether they were outside the bounds of judicial discretion. This is where researching and persuasive writing skills come in to play. An appellate attorney will research and rely on statutes, constitutions, precedential case law, administrative rules – any appropriate source of law – to argue that the trial court reversibly erred. Often this requires arguing that your case is similar to another case that the appellate court reversed.

A good brief is persuasive, well-researched, and to the point. Appellate judges read hundreds of briefs each year, many of them boring. Your brief should be the one that gets their attention, impressing them with its clarity of prose and persuading them with its compelling arguments.

Step 5: Oral Argument

Oral argument is often the final step in the appeals process. This is your last chance to persuade the appellate court of the correctness of your cause.

A good appellate advocate will know your case, and the law, inside and out, and will be prepared to knowledgeably and freely discuss any facts or law that bear upon your case. A good oral argument is much like an interesting conversation, and in a sense, that’s what it is.

From the court’s perspective, oral argument is the judges’ only chance to ask the attorneys any lingering questions they may have about the case. These questions often involve hypotheticals, details about the facts or case law cited in the briefs, or issues of public policy. The judges’ questions should never be evaded, but should always be answered directly and respectfully. Nothing irritates an appellate judge more than appellate counsels’ attempts to wriggle their way out of answering a question perceived as harmful to the case.

Generally, the more casual and conversational your attorney’s discussion with the panel is, the better for your case. The more defensive or prickly your attorney gets, the worse.

Choosing an Appellate Attorney

When considering an appeal, you should always consult a qualified appellate attorney, someone dedicated to appellate practice. Appeals are complex, and they’re governed by different rules than other areas of the law.

As a Florida appellate attorney, Samuel Alexander has the skills and experience necessary to maximize your chances of success on appeal. Whether you intend to pursue an appeal or defend against one, Mr. Alexander will bring his experience to bear in favor of your cause. To schedule a free consultation, call (689) 259-5010, email contact@alexanderappeals.com, or fill out our consultation intake form.