Vail Daily column: The mechanics of appeal
May 3, 2011
I have written about appeal before, the theory and the process, and the standards of review. But I have not before written about the mechanics of appeal, the nuts and bolts, the nitty-gritty, the “do this, don’t do thats.”
As I have shared in prior columns, law can, at times, be a very structured undertaking. There are rules and rigid formulaic ways of doing things, technical things that the courts demand and are loathe to overlook. One such matter is appeal which subscribes to the Goldilocks principal; it must be juuuust right. Or else the court will thumb its nose at you and send you packing.
The party advancing an appeal is known as the appellant. The way the appellant commences an appeal is by giving a formal notice of appeal to the clerk of the appellate court. An advisory copy must also be served on the clerk of the trial court from which the appeal is being taken. The notice of appeal must be given within 45 days of the entry of the judgment, decree or order from which the party is appealing. The notice consists of a brief description of the nature of the case and the disposition of the matter by the trial court. It must also identify the judgment or order being appealed and the basis of the appellate court’s jurisdiction. The notice of appeal is followed by an advisement of filing of notice of appeal issued by the appellate court.
Within 10 days after filing the notice of appeal, the appellant must file with the clerk of the trial court and the clerk of the court of appeals a “designation” of the record to be considered on appeal. This consists of the record of the proceedings in the trial court which the appellant considers germane to his appeal and which he wishes the appellate court to consider in its review. Within 90 days after filing the notice of appeal all necessary transcripts and exhibits must be transmitted to the court of appeals.
The clerk’s certificate is followed by a briefing schedule issued by the court of appeals. The schedule details when the appellant’s “opening brief” will be due and when the party against whom the appeal is taken, the appellee’s, “answer brief” will be due. A reply brief, prepared by the appellant (a rebuttal to the appellee’s answer), is due within 14 days after the answer brief is filed. Usually, opening briefs are due within a couple months after issuance of the briefing schedule, answer briefs are due 30 days thereafter.
The briefs themselves are formulaic and the manner in which briefs must be filed is equally structured.
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Following the statement of the case is the “argument” which must be preceded by a summary of what is to be argued in the argument section at greater length. The argument must contain appropriate references to the record and citations to legal authority. The argument is followed by a brief conclusion.
The answer brief is in most respects similar to the opening brief except that a statement of the issues of the case must only be made if the appellee is dissatisfied with the appellant’s rendition.
Modernly, briefs are filed electronically with the court of appeals. However, a signed paper copy must also be filed with the court, along with a CD with hyperlinked references to the record and authorities.
There may or may not be oral argument before the court following briefing. At times, the parties will request that no oral argument be heard, which request is generally granted. If argument is orally presented, the argument is to a panel of three Court of Appeals judges (there are a total of 22 judges on the court) and is generally limited to 15 minutes in length for each the appellant and appellee. The court may terminate argument whenever in its judgment further argument is unnecessary. Unlike at trial court, the judges may – and generally do – interrupt the oral argument with questions, often to the extent that neither lawyer ends up presenting any of his prepared remarks.
Rulings for the court of appeals can take weeks or months to issue. The court moves at its own pace. When ultimately the court does rule, it can affirm in whole or part the disposition of the lower court, reserve in whole or part the disposition of the lower court or “remand” all or part of what the lower court has done for that court’s reconsideration of one or more issue, often with “direction” from the court of appeals.
It the court of appeals determines that a particular issue which has come before it is especially germane to the development of the law, it may, by majority determination of all the judges on the court, determine to “publish” the opinion in which case it may be used in future cases as “precedential”.
As I’ve noted more than once before, asserting one’s legal rights can be a very strictly regulated matter. Seldom more so than when prosecuting or defending an appeal.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. His practice areas include business and commercial transactions, real estate and development, homeowners associations, family law and divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECO Tv 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at email@example.com.