Avoid These Mistakes in Your Appeal in Arizona
Most mistakes are fixable. But some aren't. On appeal, you need to meet certain time limits, or you lose your right to an appeal. Other mistakes won't cost you the appeal, but they hurt your chances of success. Make sure you avoid these common traps!
File Your Notice of Appeal on TimeA notice of appeal must be filed in the trial court within 30 days of the entry of judgment. This rule is critical, because if you miss the deadline, you cannot appeal.
Certain post-judgment motions extend the time to file your notice of appeal. If you file a Rule 59 or Rule 60 motion under the civil rules, or a Rule 83 or 85 motion under the family law rules, then you have 30 days from the signed written order deciding these motions. But do not file a motion for reconsideration and think it counts as a time-extending post-judgment motion! It does not.
Practice tip: You should identify in your motion what rule you are filing under (e.g., Rule 60), and double check Rule 9 of the Rules of Civil Appellate Procedure to make sure it is a time-extending motion.
Don't Include Ten Thousand Issues in Your BriefOften, when a client wants to appeal, the client is pretty upset with the way things went in his or her case. The client is convinced that every single decision the judge made was wrong, and he or she would like the Court of Appeals to review every last one of them.
The Court of Appeals would rather not, thank you.
Pick out your top three beefs and brief those. You have a much stronger chance of success, and it focuses your argument. And it could be that some of the lesser issues could be incorporated into your three main issues to support your argument.
An appellate attorney can help you streamline your issues so that your brief is persuasive and focused, which enhances your change of success.
Challenge Conclusions of Law If You Can, Not Findings of FactThe Court of Appeals applies two main standards of review. These matter.
De novo review applies to issues of law. The Court of Appeals does not defer to the trial court's interpretation of the law. For example, contract interpretation is considered an issue of law; if your trial court judge read the contract language to favor your opponent, the Court of Appeals will look at the contract and provide its own interpretation.
Abuse of discretion applies to issues of fact. This is a deferential standard. The Court of Appeals will generally not overturn the trial court's findings of fact, because the trial court heard the witnesses and saw the evidence at trial. Therefore, it is harder to win if your argument is that the evidence did not support the outcome, or there was insufficient evidence, or that your evidence was better. It's not impossible, but know that this is a harder row to hoe.
Consider AlternativesAn appeal can take a long time to resolve--up to two years. For some issues, clients don't mind taking the time. It's that important. But other issues are time-sensitive.
For issues involving children, you might want to do a special action instead of an appeal. A special action is heard on an expedited basis. You have to show you have no adequate remedy on appeal. This would be the case, for example, if you were denied time with your kids; you don't want to miss two years of their lives waiting on appeal.
Another option is not to appeal at all. In family law cases, you can show changed circumstances after two years and ask for a different order. Well, your appeal will take two years, so maybe it is best to just wait. You could also try to settle the case post-judgment. Some plaintiffs would rather have cash up front than to have to wait two years for the case to resolve on appeal.