Written by attorney Edward D. Dowling IV

A Brief Overview of the Appeals 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.

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