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Appellate Practice

What is appellate practice?
Once a judge or jury has made a decision or returned a verdict after a trial, that is not necessarily the end of the case. Any party who disagrees with the result may try to change it or to obtain a new trial by having the case reviewed by a higher court. This is called an "appeal". Appellate Practice concerns the representation of parties who are involved in an appeal, including those who request the review and those who seek to confirm the original decision.

How do you start an appeal?
An appeal begins by the filing of a Notice of Appeal. This is a relatively simple document to file but it must be filed within the time limits set by law or appeal rights may be forever lost. If you are contemplating an appeal, it is important to consult an attorney as soon as possible to ensure that you do not miss the deadline.

What happens after an appeal is started?
The party who is appealing the case (the "appellant") is required to assist in the preparation of the record of the trial court proceeding so that the appellate court can adequately conduct its review. This usually involves obtaining a transcript of the trial, either from the court reporter or, if the case was recorded on tape, by a transcription from the cassette recording. Depending upon the particular court involved, there may be other procedural forms which must be completed and filed. Once the record is fully prepared, the appeal is then submitted to the appellate court. In civil cases, the appealing party must pay a filing fee in order to enter the appeal on the appellate court docket.

What happens after the case reaches the appellate court?
The most important part of an appeal is the writing of the appellate brief. This document contains a discussion of the facts involved in the case, an analysis of the legal issues raised and an argument in support of the position taken by the party who submits the brief. The appellant files the first brief, the party opposing the appeal (the "appellee") files a responding brief and then the appellant, if necessary, can file a short reply. Once all of the briefs have been filed, the appellate court may schedule a court date to hear oral argument. Arguments are not necessarily scheduled in every case and the appeal could be decided on the briefs alone. At an oral argument, each side has no more than fifteen minutes (thirty minutes in a first degree murder case) to argue why the court should rule in that party's favor.

How Is an appeal different from a trial?
In a trial, the jury (or the judge, if there is no jury) decides the facts after listening to the testimony of witnesses and reviewing exhibits. An appeal deals with issues of law. No new evidence or witnesses can be presented. Only if the decision of the jury or the trial judge was clearly wrong will an appellate court reverse a finding of fact. Every case involves the application of legal principles to the facts presented. The appellate judges review the rulings of law at the trial to decide whether the judge ruled correctly and whether any error had an impact on the result or made the trial unfair.

What court will decide my case?
In Massachusetts, there are two state appellate courts, the Appeals Court and the Supreme Judicial Court (SJC). All cases are sent first to the Appeals Court, except for a few types of cases, such as first degree murder cases, which by statute proceed directly to the state's highest court, the SJC. Cases raising new or unusual issues may also be transferred for an initial hearing in the SJC at the request of the parties or by direct order of that Court. Once the Appeals Court has issued a decision, the party who disagrees with the result can request that the SJC review and hear the case. These requests are usually denied but there are some circumstances where they are granted and a new hearing is held in the SJC.

How long will the appeal take?
Before a case reaches the appellate court, there may be delays in obtaining the complete trial record, including a trial transcript. Once a case is docketed in the appellate court, the process of preparing and submitting briefs takes at least three months and typically one or both parties will need additional time. Then the court will either schedule a time for argument or will issue an opinion. Currently, the Appeals Court has a rather large backlog which causes a long delay between the time that briefs are completed and the time that cases are placed on an argument schedule. Criminal cases receive priority but they are now being delayed for several months while civil appeals may wait for a year or more before an argument date. Once a case has been argued, the courts usually decide within two or three months, but occasionally opinions may be delayed for six months or more. In summary, you can expect that an appeal will take at least one year, and sometimes much longer, before there is a final decision.

Will I go to court?
If the Court schedules an oral argument, all parties will be notified and invited to appear. Since the court will not listen to any evidence, only the lawyers can participate in the presentation to the court. As in all court proceedings, the courtroom is open to the general public and anyone can attend and listen to the presentations.

What happens if I win the appeal?
Most often a successful appeal will result in transferring the case back to the trial court for a new trial. Occasionally, the appeal resolves a question of law which determines the final result, for example, the dismissal of a criminal charge or an order that the court enter a judgment in favor of a defendant in a civil suit. In a few cases, the appellate court may send the case to the trial court to decide a question of fact which may either resolve the case or, in some circumstances, require an additional appeal.

If I am not successful in the state courts, can I take my case to the federal court?
While theoretically any litigant could petition the United States Supreme Court to review a decision of the SJC, as a practical matter, unless the case concerns a new legal issue involving federal law or constitutional principles, such a request is a waste of time and energy. The Supreme Court accepts so few cases that an application is worthwhile only if the issue is one which has some potential national impact. Apart from the Supreme Court, and particular issues in criminal cases, there is no right to have a federal court review the decision of a state court. A defendant in a criminal case may be able to file a petition for a writ of habeas corpus. The petition must be filed within one year after the final appellate decision and must be based upon federal constitutional issues which were raised and decided in the state appeal.

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Please call us if you have questions or if you require legal representation. Our telephone number is 617.338.5566.