Steps and Deadlines of a Family Law Appeal: Part 2 of the Appeals Series
This week we wanted to provide the reader with a breakdown of the appeal process and each step involved. The hardest part of an appeal from a client's point of view is how long they have to wait, doing nothing. An appeal is all about executing proper legal procedure, which is why hiring an attorney to handle an appeal is important.
The most important thing to know is a final order can only be appealed 30 days from the date the Court issued the order. You and your attorney have identified your order as "appealable". Your attorney should have a thorough and honest discussion with you about the following:
What parts of the order should be appealed?
If it's feasible to pursue an appeal?
Can you afford to appeal the order? (It is not cheap)
After considering the above, you chose to proceed with the appeal. However, did you know that you will have very little, if anything, to do or contribute to the appeal? When a client and and their attorney have decided to move forward on an appeal, your attorney takes over. The client has little, if any, involvement in the appeal process. This is because there is no new testimony, no not exhibits or no new evidence; it is solely paperwork, drafting, reviewing, researching, reading, more paperwork and then pulling it altogether. Below are the steps in an appeal and a brief explanation of each step:
Step 1: Notice of Appeal
The first thing you will have to do is pay a $250 filing fee, which is required by the State. The attorney will prepare and file a Notice of Appeal with the Court of Appeals and serve the necessary parties. A Notice of Appeal is simply a document which notifies the Court of Appeals, the trial court, and the parties that you are filing to appeal the trial court's order and the contact information of your attorney. There is no argument, nothing is pled, it is simply telling the legal system, "I am appealing the decision of the trial court."
Step 2: Transcript
One the appeal is filed, your attorney will contact the court reporter of the trial court to request they transcript the transcript from the hearing(s) which led to the court's order and receive a quote on how much it will cost for the transcript. A transcript can be very costly and must be paid before the court reporter will prepare the transcript. Some court reporters will accept one-half of the payment in the beginning and the remainder when the transcript is completed. The court reporter has 45 days to complete and file the transcript with the Court of Appeals from the date of your Notice of Appeal was filed. The court reporter can request an extension of the 45 day period, if needed.
During this 45 days, you wait. There is nothing that goes on in the trial court. Your attorney will begin researching, reviewing their notes from your hearing, and gathering documents. The wait will feel long. When the court reporter completes the transcript, your attorney will receive a copy and will start drafting your brief.
Step 3: The Briefs Begin
After all that waiting for the transcript, your attorney's work officially begins. They have 30 days from the date the court reporter filed the transcript to prepare, draft, and file your brief. The brief takes all of the information that was introduced at the hearing (testimony and exhibits). Your attorney will then make legal arguments on our behalf as to why the trial court's order was wrong based on the testimony, exhibits.
Once your brief has been submitted, the opposing side has 30 days to file their brief. The purpose of their brief is to state why the trial court's order is correct and why your appeal should not be granted. Most opposing sides will take the entire 30 days, as the order is in their favor. The opposing is not required to file a brief either.
Your attorney or the opposing's attorney may ask for an extension of time to file the brief if the case is complex or it took several days to hear.
Step 5: Reply Briefs
After the opposing side has filed their brief, your attorney now has an additional 15 days to file a reply to the opposing's brief. If your attorney files a reply brief, the opposing side has another 15 days to file a reply to your reply brief. Dizzy yet? Luckily, in most family law appeals reply briefs seem to be rare.
Step 6: Wait and Wait and Wait
After 85 or more days of waiting and your attorney and the opposing side are finished filing briefs, the Court of Appeals will now take over. And you are stuck waiting, again. Now each case's details are different, but it usually takes anywhere from 60 to 120 days for the Court of Appeals to issue an opinion (and sometimes it can take more). You will receive no updates from the Court of Appeals and cannot request any updates. Everyone just waits. After some time, the Court of Appeals will inform and provide the attorneys with their opinion.
Step 7: The Opinion and Beyond
The Court of Appeals' opinion will either reverse the decision, remand the decision, or affirm the decision of the trial court. What do those mean? Come back next week as we discuss what a Court of Appeals' opinion is, what they can order, and how this effects your case beyond the appeal.
The most important thing I hope you, as a client, takes away from this week's blog is an appeal is lengthy and not an immediate resolution to an order you were unhappy about. Having a true meaningful conversation with an attorney about an appeal is the real first step. #
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