Appellate Practice FAQs
How do you appeal a case?
Within 30 days of the rendering of a final judgment, or in rare occasions upon the rendering of a decision that, while not final, impacts a substantial right of a party, notice of appeal must be filed with the trial court. To have the right to appeal, the party must have preserved the issues to be appealed if those issues involve actions during a hearing or a trial. Preserving issues involves making appropriate objections during the proceedings and noting objections for the record where a judge rules in a manner that might be contrary to the procedural rules or the case law that controls.
2. Can I appeal my case?
The answer to this question is the same as the answer to “can I sue someone”? The answer is always “yes”, you can file your notice of appeal, but whether you can succeed is a wholly different question and will be an expensive proposition to answer. The question that should be asked is “should I appeal my case”? That question may be asked of your counsel from the trial court or you may seek a second opinion from appellate counsel before diving into the appellate process.
3. What is the “appellate process”?
Concentrating on the appellate process from the trial court to the court of appeals (state or federal), the process is similar. Initially, notice of appeal can be made verbally in the trial court but should be filed with a formal written motion with the clerk of superior court in the county where the case originated and was heard. If a transcript of the hearing or trial is needed as an exhibit for the appellate record, a letter should be written to the court reporter to contract for that transcript. That letter should be filed with the clerk of court as part of the trial court file.
The parties then collaborate to create the record on appeal, which includes all court filings in the case as well as whatever evidentiary documents the parties believe need to be included. If the parties are unable to fully agree on the contents of the record on appeal, then the rules now provide for the items in dispute to be included as an appendix to the record on appeal. The record on appeal is the first document filed with the North Carolina Court of Appeals and creates the file in that court.
In the federal courts where a bankruptcy is involved, there are some interim filings leading up to the creation of the file in the district court, but from the district court to the Fourth Circuit Court of Appeals is essentially the same. In either system, the creation of the record is a time-consuming process. Both the state and the federal court now encourage and/or order mediation even if the case has previously been mediated. This is something of a last-ditch effort to get the sides to resolve their dispute before undertaking the major expenses involved in the appellate process.
Once the record is settled, the clock starts ticking for the appellant’s brief (the party who requested the appeal). A legal brief is a very controlled, lengthy research paper that opens with an overview of how the case moved through the courts, then a review of the facts as they can be found in the record, then legal arguments, which must be supported by citations to either cases or statutes supporting the appellant’s position on the various issues raised in the appeal.
The brief is written in a persuasive style designed to accentuate the appellant’s arguments while addressing and providing counterpoints to anticipated positions of the appellee. At the court of appeals level, there are limits in terms of the length of the brief, and the style of the brief is highly regulated. The rules must be followed to the T in terms of font selection, spacing, word count, form, and style.
4. When do I get my “day in court”?
This is one area in which the state appellate courts and their federal counterparts differ greatly. In North Carolina, the parties can request oral arguments or submit their cases solely upon the briefs. In either event, it is the court that makes the final determination as to whether the matter needs to be heard at oral argument or whether the briefs will be sufficient. At the federal level, if either party requests oral arguments, then oral arguments will be held.
The hearings are open to the public. The lawyers are seated at their respective tables. The appellant always goes first, followed by the appellee, then, if they have reserved the time, the appellant is allowed a rebuttal. There is a strict time limit for each side. The lawyers are prepared to argue for their full time, but rarely do they get far into their scripted remarks before the panel of judges (usually three judges at the court of appeals level) begin firing questions at the lawyer.
The lawyer is expected to respond with sound legal arguments, supporting case or statutory citations and must know the cases well enough to respond to questions about the cases cited in the brief. The judges, who have read the briefs and often undertaken their own research, generally use the lawyers as foils to engage in a debate with the other judges on the topic. Preparation is key to a successful oral argument.
5. Why are appeals so expensive?
For a lawyer, the appellate process is an incredibly exacting science. Even if the lawyer handled the underlying case at the trial court level, the process of amassing the record, of drafting the brief and of preparing for oral argument takes many hours. It is not a process that can be taken lightly or given short shrift. For this reason, it is important for the client to understand going in that electing to undertake an appeal means a serious financial commitment to the case.
6. When should an appeal be taken?
This answer is relatively easy – when you believe the trial court made a clear error and the principle of the case (or at times the “principal”) of the case makes the expenditure of the economic resources acceptable in the client’s mind.
7. Does an appeal protect me from having a judgment collected?
No. Just because you file a notice of appeal does not mean the sheriff will not come knocking to collect. If the appellant faces a money judgment, in order to stop the execution process, the appellant must post a surety bond sufficient to cover the judgment. If the appeal is successful, the appellant can recover the funds. If the appeal is not successful, the appellee can satisfy the judgment from the bond.
If you are involved in appealing a case, the experienced NC lawyers at Hannah Sheridan & Cochran, LLP, are ready to assist you. Please contact us at 919-859-6840 to review your circumstances.