HOW THE SAUSAGE IS MADE, OR THE PROCEDURE AND TIMELINE FOR AN APPEAL
“Litigation – A machine which you go into as a pig and come out of as a sausage”
Once you’ve filed your Notice of Appeal, the trial court complies all of the documents in the trial court’s file, ie., all of the orders and minute entries issued, pleadings filed by the parties, and all the exhibits in evidence and then prepares a index of the same and sends the whole kit n’ caboodle down to the appellate court. So, we just wait for the appellate court to review everything and they will figure out how the judge screwed up, because it is just so obvious, right? No, unfortunately that is not how it works.
One thing that the trial court will not send down is the recording or transcript of the testimony given by the parties and their witnesses at the trial. In a family law case, that testimony is often the very crux of the evidence that the judge had to make his or her decisions. You will need to order, pay for and obtain the transcripts of the trial outlining word-for-word what every witness, each party, their attorneys, and the judge said at the trial and provide that to the appellate court. These transcripts are essential as the judges at the Court of Appeals did not attend your trial and have no idea, beyond what the trial judge stated in their ruling, as to what was said or not said at your trial absent being provided these transcripts.
Additionally, once the trial court notifies the appellate court that someone has filed an appeal in your case, the appellate court will assign you a new appellate case number and require you to file a more detailed statement of what issues you are appealing and a short background of the case. Then you will receive a “briefing” schedule. At the appellate court, you will not have a new trial or be able testify again – they base everything on what the trial judge had in evidence, either through exhibits or in the court file, or testimony before them at the trial. Everything is argued in writing through lengthy pleadings, called briefs, filed by each party. The appellate court has very specific rules regarding the format and length of these briefs, down even to type size, spacing, and font to be used. The party appealing submits the Opening Brief, and then 40 days later, the other side submits their Answering Brief, and then the appealing party can address the arguments made in the opposing party’s brief in a Reply Brief 20 days later.
After submission of each party’s briefs and a time for review of the same along with the relevant parts of the case file and transcripts from the trial, a panel of 3 judges meet about the case several months later. In a very few cases, at either of the parties’ request or at the panel’s request, an oral argument might be scheduled and heard in which the parties or their attorneys present the arguments contained in the brief and answer questions from the panel, but in the vast majority of appeals, there is nothing and no word for months while the judges on the panel debate the merits of the parties’ arguments in their briefs and then write out their decision.
Typically, it is about 18 months to 2 years from the time that the Notice of Appeal is filed to when the Court of Appeals issues its decision on an appeal. All the while, the orders rendered by the trial court are in full force and effect generally. So, if you are looking to file an appeal, plan accordingly and realize that this will not be a quick process.
Next week, we finish this blog series by talking about what to expect once the appellate court issues its decision.
If you would like to work with one of our experienced Attorneys, please call OWENS & PERKINS at (480) 630-2464 to schedule your free 30-minute consultation.