Previously I blogged about what happens during a family law trial. To see that post, click here. In this post, I will discuss what happens during an appeal.
The first question that has to be answered is whether a matter is ripe for an appeal. If the case is still pending and you want to file an appeal, there is no appeal as of right. The case is called "interlocutory" and you need to file a Motion for Leave to Appeal. Similarly, in most circumstances, a matter is not ripe for appeal unless the Order or Judgment being appealed from resolves all issues as to all parties. Motions for leave to appeal are seldom granted because courts do not like piecemeal litigation and it frustrates the notion of judicial economy. If you are going to file a Motion for Leave to Appeal, it must be filed within 20 days of service of the Order.
For appeals as of right, typically filed when a matter is over, in the case of a divorce, or upon receiving an Order resolving a post judgment motion, these must be filed within 45 days from the date of the Order or Judgment.
In an appeal, you must show that the trial judge made an error as to the law or the facts. In fact, the scope of Appellate review is whether the trial judge’s findings could reasonably have been reached on sufficient credible evidence present in the entire record (meaning the evidence and testimony presented to the trial court.) Moreover, the factual findings of the trial judge, his assessments of credibility and the discretionary decisions he may make are entitled to great deference. When the reviewing Court is satisfied that the findings and the result meet the above criterion, they should not disturb the result, even though they may have reached a different conclusion.
An appeal starts with the filing of a Notice of Appeal. All of the trial transcripts have to be ordered and ultimately presented to the Appellate Division. This can be costly depending upon the length of a trial. It also is a reason why there are so many appeals from post-judgment Orders because the cost is typically nominal by comparison.
Early on in the appellate process, the Court often stays the proceedings and orders a settlement conference with a retired Appellate Division judge who is serving on recall. The judge assesses the issues on appeal and makes recommendations for settlement. In certain circumstances, they can even dismiss appeals if they are not ripe for appeal.
If the matter does not settle, then briefs are required. A brief sets forth the relevant facts and procedural history and applies the law to the facts, advocating for the position that you are taking. A good brief, where you can cite the facts in the record before the trial court, is often paramount to success.
After both sides fully brief the matter, if oral argument is requested by either party, it is scheduled. Often this does not occur until at least six months after the last brief is filed. Oral arguments are not like trial court arguments on motions. There is less histrionics and the argument in general is on a higher and more esoteric level then before the trial court. In many ways, they are like short and intense debates. While an attorney may have a presentation prepared, they are less likely to be able to make that presentation. Rather, the Appellate panel (of two or three judges), will often fire questions important to them at the attorney from the start. The attorney has to be familiar with the record below and the law and be prepared for both the expected and unexpected.
This is not the place for personal attacks or emotional pleas, but rather, for a concise presentation as to why the trial court was right or wrong, based upon the law and the facts.
After the argument, it is often several weeks before a decision is rendered. Statistically, a majority of decisions are affirmed, which means that the appellate court did not disturb the decision. If the appellate court finds that the trial court made an error, they can correct it themselves by exercising original jurisdiction (this does not happen often) or more likely, reverse the decision and remand the matter for new proceedings or for a new trial. Some decisions are affirmed in part and reversed in part.
Matters are very often reversed and remanded, not because the decision is necessarily wrong, but because the trial judge has failed to make findings of fact and/or conclusions of law to support the decision. Put another way, the judge just made a naked decision without fully articulating why he or she decided in that fashion.
In some cases, a matter is remanded to a new judge if the first judge was reversed and made credibility findings in the initial proceeding. That said, just because a judge decided against one party is not reason to change judges.
As stated earlier, a lot of post-judgment matters are appealed because the appeal is not costly and often there is either a lack of fact finding and/or the trial judge should have held a plenary hearing (trial) but did not.
Appeals are very technical, and while any attorney can file one, you want to find an attorney who has experience handling Appellate matters. If you are interested in discussing an appeal, do not hesitate to contact me.