Robbins: Affirm, reverse, remand
Control-Alt-Delete. Affirm-reverse-remand. They share a certain resonance. And both are resets of a sort.
As any computer geek knows, “Control-Alt-Delete” is a last ditch, three-finger salute. It is a computer keyboard command used to terminate a command or reboot the operating system.
But, hey, this ain’t no computer column. You’d be barking up the wrong tree for that!
But, affirm-reverse-remand, now that’s as comfortable to me as a weighted blanket. So what, exactly, does it mean?
Well, rather than explaining what it “means,” allow me to explain what it “is.” And what it “is” is what the court of appeals can do once an appeal smacks on its desk. First things first, however.
When you go to trial and are unhappy with the outcome, the yellow brick road to Oz always lies before you. Just as Dorothy, the Tin Man, and the Cowardly Lion marched off to Oz to plead for home, a heart, and courage, you can trundle down the yellow brick road to your nearest appellate court and seek to have the injustice visited upon you reconsidered.
State trial cases are generally first appealed to the court of appeals of the particular state. Not surprisingly, if you have had your lunch handed to you in a Colorado trial court, the Colorado Court of Appeals is where you next lodge your grievances.
The Colorado Court of Appeals, located in Denver, has 22 judges. The court sits in panels of three to hear cases. Assignments to these panels are made by the chief judge. So, rather than having one judge to persuade as you did at trial, at the court of appeals, you will have three.
Appeals are commenced by first filing a notice of appeal. The record on appeal is then gathered and a briefing schedule is issued by the court. The “appellant” (that is, the party bringing the appeal) goes first and in his brief (no, not his briefs!), lays out the argument why his appeal should be successful. This is known as an “opening brief.” The “appellee” (the party defending the appeal) goes next. “No, Your Honors,” s/he argues in one way or another, “the status quo established by the lower court should not be disturbed.” The appellee’s brief is known, not surprisingly, as an “answer brief.” The appellant, however, gets the last word. After the answer brief, the appellant may file a “reply.”
There may or may not be oral argument before the court. Instead, the judges may simply consider and decide the matter on the briefs and on the trial court record that has been “designated” for the court’s consideration. If oral argument is permitted, it is generally limited to 15 minutes per side. Strictly limited. When you go to argue before the three-judge panel assigned to your case, a timer – like in a game show – faces you. What it looks like is a traffic light laid on its side.
As you begin to speak, the timer is engaged, turning from green, to yellow, and finally red as your time ticks quickly off. When the clock goes red — much like at a traffic signal — you’d better hit the brakes. And fast! “That’s all, counselor. Thank you!”
A quirk of argument before the court of appeals, is that in your 15 minutes, you may not get out even one iota of your prepared statement. Instead, the judges may pepper you with questions of their own and challenge any words or thoughts you do manage to eke out. It is the judges’ show, played by the judges’ rules, and you are wise to understand that before you venture in.
Then — whether oral argument was entertained or not —the judges deliberate, which they can do for days or weeks or even months. When they are finally done a’ponderin’, they issue an “opinion.” An opinion can be aggravatingly curt or exhaustingly long. If you remember, recently, in the post-election imbroglio, when the ex-president challenged the results in Pennsylvania, the Supreme Court issued a one-sentence opinion that said, basically, “Ah, no.” Current Supreme Court decisions average about 6,000 words.
And that brings us back full circle – affirm-reverse-remand.
Stated simply, that’s what the court can do. It can affirm the prior judgment, reverse the prior judgment, or remand it.
The first two — affirm and reverse — are intuitive, but it’s a little more complicated than that. The Ccourt can also affirm in part and reverse in part. In other words, it can uphold certain portions of the prior decision and reverse others.
The court can also reverse and remand; vacate and remand; dismiss; stay; vacate and remand; modify; or many varied permutations. For example, it can affirm in part, reverse in part, and remand.
But, hey, let’s keep this simple. Like Ford, Chrysler and GM, let’s stick with the Big 3. So if we get what affirm and reverse mean, what about “remand?”
Simply, remand is a “do-over.” The appellate court sends the matter back to the trial court for further action, often with “directions” (that is, instructing the trial court as to specific things the appellate court would like the lower court to again and what things it should consider).
Think of it like this; what the Court of Appeals does is like a reboot of the law. Affirm-reverse-remand.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926-4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com.