Civil Appeals very simply put, include all non-criminal appeals. They encompass all areas of law including commercial appeals, matrimonial and family law appeals, real estate appeals, and estates, trusts, and wills appeals. A civil appeal arising out of a decision in New York State Courts can be brought before a final verdict or decision is issued. When an appeal is brought before a final decision, it is called an interlocutory appeal. These appeals are usually best taken if the decision of a judge affects the final outcome of the case. The concept of an interlocutory appeal is far more common in Civil Appeals than in it is in criminal appeals.
Motions for summary judgment are commonly used to seek dismissal of a case that is not worthy of trial. These decisions can often be close calls and sometimes worth appealing instead of continuing on with the case. Litigation is expensive, and New York Court’s recognize the need to sometimes appeal a trial court’s decision before a case has ended in trial court.
The law’s generosity in this regard, however, demands strict adherence to court rules in exchange. A civil appellant must strictly follow court rules in creating the appellate record, writing the briefs, and submitting all documentation in support of their appeal. If a trial court’s decision is adverse to you, it is imperative that you act quickly and see an appellate lawyer. The complexity of the rules are seldom navigated successfully by non-lawyers, and present significant challenges even for the most successful trial lawyers.
GENERAL STEPS IN A NEW YORK CIVIL APPEAL
NOTICE OF APPEAL – TAKING AN APPEAL
The filing of a Notice of Appeal with the clerk of the trial court is the first step in the appellate process. This initial step is referred to as taking an appeal. However, before filing the notice of appeal, you must first determine whether you have appealable paper. It is also important to note that there are strict time limitations to file the Notice of Appeal. A late or defective notice of appeal may be fatal to your appellate matter. Each appellate court also has additional filing requirements such as a RADI (Request for Appellate Intervention) and a Pre Argument Statements, which vary from appellate court to appellate court.
PERFECTING AN APPEAL
Once the notice of appeal has been properly served and filed, the remainder of the steps toward the appellate court hearing and deciding the case is referred to as “Perfecting the Appeal.” This generally includes the following:
REVIEW AND COMPILATION OF THE RECORD ON APPEAL
An appellant generally files with the appellate court a copy of (or relevant part of) the record upon which the lower court’s decision was premised, otherwise known as the trial record. The trial record generally includes the documents filed with the trial court along with transcripts of proceedings and hearings and related evidence in the matter. Depending on the nature and length of the action, this can often be comprised of a voluminous number of documents which may take time and effort to identify and procure. It is generally the appellant’s responsibility to compile and assemble the underlying record. It is not uncommon to retain the services of an appellate printer to assist in this process of organizing, printing and binding the underlying record along with the related briefs.
The parties’ briefs set forth the relevant facts and legal arguments for why the lower court’s decision should be reversed or affirmed.
There are generally three types of briefs:
- the Appellant’s opening brief,
- the Respondent’s Brief (or opposition brief); and
- the Appellant’s reply brief, where if necessary, the Appellant rebuts the Respondent’s facts and/or arguments.
A party who files a cross appeal, also known as the Respondent–Appellant , also has an opportunity to file a reply brief.
It should be noted that there are also instances where the appellate court grants permission for the filing of an amicus brief by an amicus curiae (friend of the court). An amicus curiae is a person, group or entity who is not a litigant in the matter, but has an interest in the subject matter and/or outcome of the case. With permission of the court, they file what is commonly referred to as an amicus brief in support or against a particular position.
Oral argument is an opportunity for a panel of appellate judges to clarify any questions, arguments or facts they may have in connection with the appeal. Not every case is calendared for oral argument. Further, the parties can also request that the appeal be heard on submission.
The Appellate court will render a written decision which may affirm or reverse in whole or part the trial court’s order or judgment and/or remand the case for further proceedings in the lower court. The losing party in the intermediary appellate court might still have some options to reargue the matter or seek leave to appeal to the higher court.
Contact our appellate practice group if you are in need of the services of an appellate law firm that understands the complexity of dealing with a civil appeal.