A Brief Overview of the Appeal Process

The process of appealing an unfavorable decision ( usually after a trial ) whether in a Criminal  or Civil Case  and whether in a NY State or in a Federal case is substantially the same with some relatively minor differences. Since I wrote  a previous article on  Federal Civil Litigation, this article will also concentrate on the Federal Civil Appeals process.

For purposes of discussion, presume that the Appellant ( person appealing the decision is the Appellant; person defending the appeal is the Appellee )   received an unfavorable decision after a several days trial in a Federal District Court in NY.  The Appellant must commence the Appeal by filing a ” Notice of Appeal “ within a certain time after entry of the order by the clerk of the court ( usually 30 days, 10 if  a Federal Criminal case ) and serving it on the other parties in the case. In NY an appeal from a U.S. District Court is taken to  a Court of Appeals for the appropriate Circuit.  If the U.S. District Court was in the Southern District of NY ( Manhattan) or in the Eastern District of NY ( Brooklyn, Queens, Nassau or Suffolk County ) then the appeal is taken to the U.S. Court of Appeals for the 2nd Circuit.

Then the Court will assign a case number to the case  and set a time period  for the Appellant to Perfect the Appeal by compiling an Appendix, or Record on Appeal consisting of the documents in the case including the Trial Transcript, and preparing a written Brief containing the legal arguments why the Appellant should win  the case including citations to Authorities including  Constitutional, Statutory and Case Law, and serving  the parties and filing with the court, the Appendix or Record  and the Brief. Usually the Appeal is prosecuted using the full Record on Appeal ( it includes all documents in the case ). However sometimes an Appendix is used in place of  a full record, usually if the record is very voluminous and/or there are many documents not relevant for the court to decide the issues on appeal.

If an Appendix is to be used, the procedure is for the Appellant’s attorney to obtain the documents he  believes are relevant to deciding the case and submit a proposed list of documents that will be in the appendix to the other parties’ attorneys. If the proposed list of documents is agreed upon by the other parties’ attorneys then the appellant will have those documents numbered  and bound up  into an appendix according to the court’s rules regarding details such as contents of appendix, cover sheet, number of copies for the other parties  and the appellate judges, etc., and  then write a Brief ( again complying with court rules regarding font style and size, length in pages or number of words, number of copies, etc. and serve and file the  correct number of copies of the Appendix  and  Brief.

If the other parties’s attorneys do not agree with the list of proposed documents for the Appendix then they  will submit a counter proposed list  ( adding any documents they feel necessary to decide the appeal ) to the Appellant’s attorney to see if  it will be agreed to. If the Appendix is not agreed to then the proposed  and counter proposed list of documents is submitted to the court  and the court will decide which documents shall be put in the Appendix . After the Appendix is either agreed to by the attorneys or determined by the  court  the Appendix and Brief will be served  and filed as described above.

There is a third  method of prosecuting an Appeal ( other than by Appendix or by Record)  and that is by proceeding upon the Original Papers .  This means  that instead of compiling  multiple copies of the Appendix or Record  and the Brief  the  District Court will forward  the Original Court Documents to the Circuit Court and only have to serve  a copy of the Brief on the other parties. This method can only be used if the Appellant submits  an Application In Forma Pauperis ( an application for Poor Person Status ) and the Court grants the application. The application is usually granted provided the Appellant meets the criteria regarding low Income and  low Assets. If the application is granted this means the Appellant saves a lot of money since he does not have to pay the filing fee for the Appeal ( a few hundred dollars ) nor the substantial cost of having multiple copies of the Appendix or Record  and Brief, photocopied, bound up, served  and filed. Usually, although not required ( as long as the Record  and Brief are in correct format  and bound properly according to the court’s technical rules  ) an Appellate Printer is used since  they know the court rules regarding formatting, binding  the Appendix, or Record  and Brief. Appellate Printers also perform the service of serving  and filing the Appendix or Record  and Brief. However a regular printer or photocopier can be used  at less cost instead of an Appellate Printer.

When the Court set a schedule for the Appellant to  Perfect the appeal, it will also have set a schedule for the other parties’ attorneys to submit their Opposing Briefs and a time  period for the Appellant to submit any Reply Brief if he chooses to do so.

After the Appendix or Record or Original papers and all briefs  are served  and filed by all parties the Appeal is then awaiting a decision from the Court. The decision can be to Affirm the District Court decision ( usually this is the case absent some compelling procedural error at trial or other compelling circumstance) or Reverse the District Court  and render a judgment in favor of the Appellant, or Remand the case to the District Court for a New Trial ( usually because new evidence has been obtained after the trial which could not have been obtained before trial).

If the Appellant  obtains a new trial but loses he may be able to appeal again to the Circuit Court. If the Appellant did not obtain a new trial  and lost the appeal he may be able to appeal to The U.S. Supreme Court. To do this he must apply for a Writ of Certiorari granting permission to appeal.This is rarely granted unless there is a substantial Constitutional issue at stake  or a novel question of law affecting the public as opposed to merely a dispute that only affects the parties to the dispute.

A detailed discussion of Appeals to The U.S. Supreme Court is beyond the scope of this article.

Watch for more articles on  Criminal and Civil Law.


About edwardddowlingivattorneyatlaw

Established my General Practice Law Firm in 1991 Criminal and Civil Litigation Trials and Appeals Federal and State courts Nassau and Suffolk Counties All 5 boroughs of NYC
This entry was posted in Federal civil Litigation, Uncategorized. Bookmark the permalink.

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