“I now have a final order to appeal. What happens next; and please explain the steps in front of me.”
After an adverse decision in a trial court, there are three choices available that an aggrieved litigant must make. To aid this process, Ciyou & Dixon, P.C. sets out the steps and then explains them in general terms.
Accepting the Trial Court’s Decision: The first choice is to accept the decision. In cases of low dollar value, or where there outcome is one that effectively “splits the baby” giving each party some of what they ask for, this may make sense.
A frank and forthright discussion with your trial counsel about ending the litigation should always be a consideration. If selected, this ends the analysis and the appeals process is never engaged.
Motion to Correct Errors: The second choice is to file a Motion to Correct Error. This is filed in the same trial court and asks the judge to reconsider the final order or decisions, and is governed by the trial rules. Typically, a Motion To Correct Error is not the preferred course, unless there is a new case that would change the outcome, or there is some obvious error in the trial court’s decision, such as a math error in child support.
When utilized, a Motion to Correct Error must be ruled upon or a hearing set within a specific amount of time or it is deemed denied and the time for appeal begins to run again.
Notice of Appeal: The third choice, is to file a Notice of Appeal within 30 days of final order. At this point, the appellate rules take over. Several years ago this was called the Praecipe. This perfects the appeal. The Notice of Appeal also requests that the court reporter prepare the Transcript and the Clerk’s Record.
Appellant’s Case Summary: As soon as the appellant, or his or her appeals attorney receives a filed marked Notice of Appeal from the trial court, he or she must file the Appellant’s Case Summary.
This is basically the attorney’s appearance, along with information about the appeal and certain documents to allow the Indiana Court of Appeals to know what is coming in the ensuing appeal.
Appellant’s Brief: The triggering event for the Appellant to begin to prepare his brief is the Notice of Filing of the Transcript. At this time, the Appellant has 30 days to research, revise, and file a completed Appellant’s Brief. This Brief may be 30 pages or 14,000 words, which ever is longer.
It is critical to note that extensions of time to brief the case are disfavored. In certain types of cases, such as domestic relations where there are child related matters, extensions are only allowed in extreme situations.
Appellee’s Brief: The Appellee then has 30 days to file the Appellee’s Brief. It is limited to addressing what the Appellant has raised in his or her brief. There is no requirement that an appellee file an appellee’s brief, but it does lower the standard of review the Court of Appeals applies and is less than optimal.
Material that is briefed that is not responsive to the Appellant’s Brief is subject to being stricken. This Brief may also be 30 pages or 14, 000 words in length.
Appellant’s Reply Brief: Since the Appellant has lodged the appeal, he or she has the right to file a final reply brief. This brief is limited to replying to the Appellee’s Brief. It must be no longer than 7,000 words in length.
Oral Argument: If requested, the Court of Appeals may allow an oral argument. With this, the parties are invited to the Court of Appeals and allocated a fixed amount of time to argue the merits of their respective positions. These are rare.
Decision: On average, after the briefing is complete, the case transferred by the Clerk of the Court to the writing panel of three judges, assuming there is no oral argument, the case is then decided in about 30-60 days and the Court of Appeals issues a written decision.
This decision may be “For Publication” or “Memorandum” in nature. Cases that are “For Publication” typically do not involve the merits of the parties case. Instead, they reflect some development of the law by their decision.
When issued, the parties have 30 days to ask the Court of Appeals to rehear the case or seek transfer to the Indiana Supreme Court.
Although complicated, and laden with deadlines that can waive the right to appeal, a skilled appeals attorney can carefully navigate the appellate process. Is this something Ciyou & Dixon, P.C. can assist you with?
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