Filing Appeals and Other Post-Trial Proceedings

Filing appeals and other post-trial proceedings are very complicated and can be very expensive. They are driven by complex and numerous rules and procedures. Therefore, with the exception of small claims court appeals, it is always advisable to hire an attorney to represent you on appeal or with other post-trial proceedings.

Appeals An appeal is a request to a higher court to review the decision of a trial court based on a legal error made by a trial court.

Each state has its own statutes and court rules that govern the appeals processes. The first place to look for information about appeals is with the trial court from which you wish to appeal.

Before an appeal may be filed, the following issues must be determined:

Has a Judgment Been Made? A judgment is not made when the jury reads its verdict in open court or when a judge pronounces the verdict. Instead, a judgment is made when there is a document that:

1. Is in writing;
2. Is entered on the record by the judge's signature and by the clerk of the court stamping "filed" on the judgment;
3. Appears complete; and
4. Provides direction by the court to take action, or not take action, or states that certain relief is not granted.

Is There a Final Judgment? A judgment is final when:

1. A final determination has been made by a judge;
2. No issues remain to be determined at a later date; and
3. The judgment ends the suit for all parties or for one particular party or group of parties.

Is the Judgment Appealable? Most types of judgments are appealable if they are final and don't fall within certain narrowly proscribed exceptions, which include, but are not limited to, contempt judgments and stipulated judgments. You should determine whether the judgment you wish to appeal falls into any category of judgment that is not appealable in your state.

Do You Have Standing to Appeal? Only an aggrieved party may appeal. An aggrieved party is a person having an interest recognized by law in the subject matter of the judgment of the court, which interest is injuriously affected by the judgment. Only a party of record at the time the court enters the judgment may appeal, with few exceptions.

If you have determined that you are able to file an appeal and providing you don't want the judgment to be enforced while your appeal is proceeding, you must obtain a stay of enforcement of judgment from the court that issued the judgment. A stay is not automatic.

Filing Notice of Appeal
An appeal begins when the loser at trial files a Notice of Appeal. It is critical to file the Notice of Appeal within the proscribed period of time. The notice is usually due within a certain period of time after the clerk mails the entry of judgment to the parties. This period of time varies from state to state, but is typically within 30 to 60 days. Do not miss the deadline for filing the notice or you may lose your right to appeal.

The Notice of Appeal is prepared according to your state's requirements and then filed with the trial court where the judgment was entered. There are fees involved with filing an appeal, including filing and other miscellaneous fees, which can be close to $1,000 in some states.

The trial court will notify all parties and the clerk of the reviewing (appeal) court that you have filed an appeal.

After you file the Notice of Appeal, you must obtain the record needed for the appeal, which consists of two parts: the court clerk's transcript, which contains the relevant documents from the court file in the case, and the court reporter's transcript, which is the transcript of the oral testimony heard in the case. You will need to designate which portions of these transcripts are to be in your record on appeal. It can be very expensive to obtain these two types of transcripts and, where possible, you should limit what you will need.

You must also provide copies of all legal documents filed with the court leading to the judgment being appealed.

Appellate Briefs; Oral Argument
The person filing the appeal (appellant) and the other party (respondent) both submit written arguments (briefs) to the courts and to each other. Every state and each appellate court has rules regarding the content, format, and length of the briefs. The briefs contain each party's written description of the facts in the case, the relevant law, and the party's argument. Using references to the Court Clerk's and the Court Reporter's transcripts, the briefs explain and argue the legal errors in the trial court proceedings.

In addition to submitting the appellate briefs, the parties may then be asked to make oral arguments explaining why the trial court's decision should be upheld or overturned.

Decision
An appellate court normally accepts as true all the facts the jury or trial judge found to be true, and decides only whether they made mistakes in understanding and applying the law. If the appellate court determines that a mistake of law was made, it will direct the lower court to conduct a new trial; however, mistakes may also be considered "harmless," in which case the judgment is left alone. Certain types of mistakes, including miscalculation of damages, may be corrected by the appellate court without requiring a new trial.

After the appellate court has read the briefs and heard oral argument, it will issue an opinion, deciding who wins or loses. If you lose and believe the court of appeals made a mistake, you can file a petition for rehearing with the appellate court or a petition to have your appeal heard by the United States Supreme Court or State Supreme Court, as applicable.

Every state has rules on filing appeals with its appellate courts, and individual courts of appeals will also have their own rules for filing. You should check your state and individual appellate courts to learn the requirements for filing any appeal.

Small Claims Court Appeals
Appealing a small claims court decision is very limited for both plaintiffs and defendants. In many states, only the party who was sued in a small claims action can appeal; the party who filed the action may not. In some states, a small claims court decision may only be filed if there was a mistake of law, not a mistake on the facts of the case.

There is typically a very short time within which to appeal a small claims court decision, generally ranging from 10 days to 30 days after the decision was rendered.

Appealing a small claims court decision is a completely different type of appeal. For a detailed description of this type of appeal, go to Appealing a Small Claims Court Decision at AllBusiness.com.

Post-Trial Proceedings
After a trial has concluded and the verdict has been rendered by a judge or a jury, the judgment must be formalized in writing by the court. Once the judgment has been formalized, either party may initiate a post-trial proceeding by filing a post-trial motion.

Post-trial motions differ from appeals in the following ways:

• Post-trial motions are filed with the trial court and not a court of appeals;
• In most court systems, a party has a very limited period of time in which to file a post-trial motion, often only ten days; and
• There are three common types of post-trial motions, including (1) Motion for a New Trial; (2) Motion for Judgment Notwithstanding the Verdict; and (3) Motion to Amend or Nullify the Judgment.

Although the period of time within which post-trial motions may be filed is very limited, motions to alter or vacate the judgment on the grounds of mistake, fraud, or newly discovered evidence that was unavailable at time of trial may be filed after the limited time period.

The three common types of post-trial motions are as follows:

Motion for Judgment Notwithstanding the Verdict (JNOV). This motion refers to a decision of a judge to set aside or reverse a jury's decision in favor of one party in a lawsuit or a guilty verdict when the judge is convinced the judgment is not reasonably supported by the facts or was contrary to the law. JNOV. is a shorthand acronym of the Latin phrase non obstante veredicto, meaning "notwithstanding the verdict." By granting this motion, the court demonstrates it realizes it should have directed the jury to reach an opposite verdict in the first place. This judgment is rarely granted.

Motion for a New Trial. This motion is a request made by the loser for the case to be tried again on the basis that there were clear legal errors in the way the trial was conducted or that the jury or the judge sitting without a jury clearly came to an incorrect decision. This motion must be made within a very short period of time after the judgment is formally entered and is usually heard by the same judge who presided at the trial. This motion is rarely granted unless there is some very clear error that any judge would recognize. Some lawyers feel the motion helps add to the record of argument leading to an appeal of the case to an appellate court.

Motion to Alter or Amend the Judgment. This motion is made to alter or amend the original judgment to change amounts or dates of interests, costs, attorney fees, and so on that are relevant to the finality of the judgment.

Post-trial motions are typically filed only in cases involving a jury verdict because the parties recognize that it is unlikely that a judge would reverse his or her own ruling except under circumstances where new evidence has been discovered that was not available at trial.

Every state has rules about what types of post-trial motions are acceptable and rules for filing these motions, and trial courts in individual counties will have their own local rules regarding post-trial motions. You should check your state and local rules to learn the timing and all other requirements for filing any post-trial motion.

For more information, go to the Litigation section of the Legal Center at AllBusiness.com.