Top Ten Things to Know About Appeals
1. IT’S ALL ABOUT THE RECORD.
The first question I’m typically asked by a prospective appellate client is “How can we tell the appellate court about all the emails from my ex-husband (credit card receipts, nasty texts) my lawyer refused to present, despite my pleas?” The answer is, we can’t. An appeal is based on the record presented to the trial court. Any evidence that is not in the record will not be considered on appeal, and any argument or objection not properly preserved is typically waived on appeal. While there are certain exceptions, such as constitutional or jurisdictional arguments, the most important step your trial lawyer can take in preserving your appellate rights is to make a proper record.
2. IT’S ALSO ALL ABOUT HAVING A FINAL, APPEALABLE JUDGMENT.
If a judgment or order is not appealable, the appellate court lacks jurisdiction to decide any issues on appeal. While there are “interlocutory” appeals, and special actions, in most cases you will need a final, appealable judgment before you can seek appellate review. Arizona and federal courts include a procedure for seeking a final, appealable judgment even when there are other claims pending or other parties continuing their litigation (a “Rule 54(b) judgment”). Here in Arizona, a judgment as to all claims and parties is not final unless the judgment recites that “no further matters remain pending and that the judgment is entered under Rule 54(c).” Appellate Courts – - both state and federal – will review their own jurisdiction and absolutely will send the case back to the trial court if there is no final, appealable judgment.
3. A TIMELY NOTICE OF APPEAL IS “JURISDICTIONAL” – DON’T MISS THE DEADLINE!
The deadline for filing a notice of appeal depends on the rules of procedure applicable to the court’s jurisdiction. In Arizona, for example, a party to a civil suit must file a notice of appeal no later than 30 days after entry of the judgment from which the appeal is taken, subject to the filing of certain post-judgment motions which may extend the time for appeal. See Rule 9, Ariz.R.Civ.App.P. A notice of appeal filed after the superior court announces an order or other form of decision, but before entry of the appealable judgment, is treated as filed on the date of and after the entry of the judgment. A wise person once said, “File early and often.”
4. IT’S ALSO ALL ABOUT THE STANDARD OF REVIEW.
Many years ago, an appellate judge told a seminar of appellate lawyers that she may disagree with a trial judge’s factual findings, and may have ruled differently if she was the trial judge in the case, but would not “rethink” the trial judge’s factual determinations. There are three basic categories of decision reviewable on appeal, each with a standard of review: (1) legal decisions are reviewed de novo, (2) factual decisions are reviewed for clear error, and (3) discretionary matters are reviewed for abuse of discretion. In representing an appellant (appealing the decision), our least favorite categories are factual findings and discretionary matters because those are, by their nature, the most difficult to overturn. In representing an appellee (defending the decision), those are our favorite categories because the appellate court is not likely to “rethink” the trial judge’s factual or discretionary determinations. An arguably incorrect legal decision represents the most favorable position for the appellant (and the most dicey for the appellee) because the legal decision is reviewed de novo: “from the beginning” or “anew.”
5. NO, WE WON’T USE AN APPEAL TO SUE YOUR LAWYER, CLAIM MALPRACTICE, OR OTHERWISE DISS YOUR TRIAL LAWYER.
The second question I’m typically asked by a prospective client is whether we can use the appeal to really nail his or her trial lawyer for losing the case. Again, no. For purposes of our appeal, your trial lawyer was Clarence Darrow: he made all the right arguments, presented every bit of relevant evidence, made all the proper evidence and, nevertheless, the judge or jury erred.
6. AN APPEAL IS A HIGHER COURT REVIEWING A DECISION OF A LOWER COURT
The trial courts include lots of smart, earnest, hard-working judges, doing their best to make the right decision. In Maricopa County, there are about 95 judges and 60 commissioners, and approximately 163,000 new cases filed each year in the County. In the probate department alone, there are more than 20,000 active and/or pending cases at any given time. No matter how smart, how earnest, or how hard-working, that’s a lot of brain interaction for each judge. And sometimes there are errors, actual or perceived. An appeal from superior court in Maricopa County would typically be filed in the Arizona Court of Appeals, Division 1, which has 16 judges, plus law clerks and staff attorneys, and the resources to spend far more time and attention on each case. A panel of three appellate judges would typically consider an appeal from superior court to the Arizona Court of Appeals or from federal district court to a Circuit Court of Appeals.
7. THE RECORD INCLUDES ALL THE DOCUMENTS, TESTIMONY, EXHIBITS AND PAPERS FILED IN THE TRIAL COURT.
The appellate court will not hear live witnesses. The “record” that moves from the trial court to the appellate court consists of all the documents your attorney filed in the trial court, plus transcripts of live testimony or arguments, and exhibits that were admitted at trial or included in court filings (such as motions for summary judgment). Appellate clients typically tell me the other guy (ex-wife, ex-business partner) was lying and the judge fell for the lies hook, line and sinker. But the appellate judges won’t see the ex-wife lying; it’s just a transcript and written testimony. And remember #2 above: if the issue is credibility of a witness, the appellate court will defer to the trial judge or jury – whoever saw and heard the live testimony.
8. SOME ARE AUTOMATIC AND SOME ARE DISCRETIONARY
More than 7,000 Petitions of Writ of Certiorari are filed in the U.S. Supreme Court each year, and the Court accepts only 100-150. Four of the nine justices must vote to accept a case. The Supreme Court usually only accepts cases of national significance, to harmonize conflicting decisions in the federal Circuit courts, or that have significant precedential value. Supreme Court review is the quintessential example of discretionary review. Other courts, such as the Arizona Court of Appeals and the Ninth Circuit Court of Appeals, are required to automatically review final appealable judgments from the lower superior courts and district courts, respectively.
9. YOU HAVE TO OBEY THE ORDER, EVEN IF YOU’RE CERTAIN IT’S WRONG – UNLESS YOU ARE GRANTED A STAY
Filing a notice of appeal is not a “get out of jail free” card. In most cases, if you have a final money judgment entered against you, you will have to pay unless you post a supersedeas bond to stay enforcement of, or execution on the judgment. A supersedeas bond cannot be posted to stay certain judgments, such as payment of spousal maintenance or child support, or award of child custody.
10. YOU WON IN THE TRIAL COURT – BUT YOU’RE NOT HOME FREE AND YES, YOU DO HAVE TO PARTICIPATE IN THE APPEAL.
If you’re reading this as the winner of a trial court judgment – Congratulations, you’re an appellee. The question I get the most from appellees is: “Can they do that? Can they continue to waste my time and money even though I won?” Yes, of course. And most appellate courts will require you to pay a filing fee and submit a brief in opposition to the appellant’s brief. In Arizona, if the appellee does not timely file an answering brief, the court may deem the appeal submitted for decision based on the opening brief and the record. In other words, the person who wasted all your time and money in the trial court now has the last word in the appellate court. Not a good look, and probably not a prudent course of action.
About the Author: Kathi M. Sandweiss is an attorney at the Phoenix law firm of Jaburg Wilk where she is head of the appellate law department. She is the former chair of the Arizona State Bar Appellate Practice Section. Kathi has written more than 100 appellate briefs, filed in the Arizona appellate courts, the Ninth Circuit Court of Appeals, the Bankruptcy Appellate Panel, and the U.S. Supreme Court. She is the author of the blog -That is Appealing.