We Lost, Now What? Perfecting the appeal
What is an appeal?
The Nolo online legal dictionary defines an appeal as follows:
“A written request to a higher court to modify or reverse the judgment of a trial court or intermediate level appellate court.”
The party seeking the appeal is called the appellant. The party defending the appeal is called the appellee. Generally, the appellate court takes the evidence presented at the trial court to be true and considers only whether the judge made mistakes in understanding and applying the law.
Sometimes an appeal is called a “direct appeal”, distinguishing it from a mandamus proceeding, or other type of proceeding. A direct appeal seeks review of a trial court’s final judgment. A judgment is final for the purposes of appeal if it purports to dispose of all claims and parties. In contrast to a direct appeal, other appellate proceedings, such as mandamus or habeas corpus, ask the appellate court to make an initial decision on an issue.
Deadlines are extremely important in an appeal, as a client could lose very important rights if a deadline passes without action. Most often, unlike the trial court, there is no grace or leave of court granted when a deadline passes.
The important deadlines are as are listed in the tables attached as Appendix A to this paper.
Considerations for an appeal at trail-court level
Preparation for an appeal really begins at the trial court level. In order to prevail on an appeal, the proper foundation must be laid at the trial court level.
A. Preservation of Error Generally
B. Trial Court Pleadings
The requirement of mandatory pleading for the issues listed above can be waived for appeal if the opposing party fails to object, thereby trying the issue by consent.
C. Admission of and Objections to Evidence
In order to preserve an objection to evidence on appeal, the party opposing admission must make a timely objection and pursue it until obtaining an adverse ruling. An objection must be overruled to preserve error for appeal. If evidence is admitted over the objection, the objecting attorney must insure the Court’s decision to overrule it is on the record.
The admission or exclusion of evidence is only error where a substantial right of a party is affected.
D. Findings of Fact
E. Post-Judgment Motions in the Trial Court
F. Statement of Points of Appeal in Termination Cases Involving Texas Department of Family and Protective Services
Parents appealing final orders in termination cases not involving TDFPS are not subject to the deadlines and additional requirements of Texas Family Code 263.405, and are instead subject to the normal appellate deadlines.
Starting an appeal
A. Notice of Appeal
Each court of appeals has their own form of docketing statement. These are generally available on the courts’ individual websites. See Appendix C for a list of the appellate courts and their websites.
B. Designation of Clerk’s Record and Reporter’s Record
The designation of the reporter’s record advises the court reporter of the hearing dates which need to be transcribed. Obviously the final trial should be transcribed, but it is not always necessary to include transcripts of every motion hearing that was held unless there is a specific issue for the appeal that involves that hearing.
C. Motions in the Court of Appeals
The courts of appeals charge a filing fee for every motion that you file. If you do not pay the fee with the filing of the motion, your motion will not be docketed for a response.
A certificate of conference is required on every motion filed in the appellate court. The opposing side will be given 10 days to respond to any motion unless the certificate of conference shows agreement.
The court of appeals will prepare its own order ruling on the motion, so it is inappropriate to provide a drafted order with your motion in the appellate court.
The appellate courts also require parties to file the original plus multiple copies of any motion — usually the original plus three copies. It is a good idea to call the clerk of the court and ask how many copies are required before filing it. If the right number of copies is not provided, the court will not file the motion.
Mediation is becoming increasingly common at the appellate level. There is a place in most of the courts’ docketing statements to indicate whether mediation could assist in resolving the conflict. Whether the parties attended mediation at the trial court level is also a factor in whether the court of appeals will order mediation.
Briefing and argument
The penalty for failing to file the appellant’s brief by the deadline can be dismissal of the appeal.
Texas Rule of Appellate Procedure 9.4 provides the above stated requirements. Failure to comply with these requirements will cause the party’s brief to be stricken and returned to the filing party.
Appellee’s brief must comply with the same length and formatting requirements as the appellant’s brief.
The appellant’s reply brief must be no longer than 25 pages, exclusive of the items states above. The court, on proper motion, may extend the length requirements.
Argument begins with, “May it please the Court and opposing counsel… ” The attorney should introduce herself and her client, then state in one sentence the relief being sought. Next, give a short statement of the case and identify the issues. Provide a summary of pertinent facts for the Court. The next step is to proceed with the meat of the argument and discussion of the cases. Proceed with the strongest argument first. At the end of the argument, the attorney should present a short summary of the argument and relief requested.
Each court has different rules about the length of argument, so check the local rules before attending the argument. The attorney should be prepared to answer questions from the justices about the case and authorities. If a justice starts to ask a question, the attorney should immediately stop talking, listen to the question, then answer it directly. If another question is not asked, the attorney should continue with the argument.
Note that a party is not entitled to have an oral argument. Argument is conducted at the pleasure of the court. If the parties request argument and the justices assigned to the case do not wish to hear it, the court will notify the parties that the case will be submitted without argument.
A case is submitted for decision after all the briefing is completed. Following the submission and argument, if any, the justices will consider the case.
There is no time restriction on how long the justices can consider a case before making a decision.
Once decided, the court will issue its opinion and judgment. These are separate documents. The opinion of the court of appeals is the document that contains the reasoning that supports the court’s judgment. The judgment is the pronouncement of the court’s disposition.
Sometimes the justices disagree on the decision, which may result in one or more justices writing a separate dissenting or concurring opinion.
There are three types of opinions — a signed opinion, a memorandum opinion and a per curiam opinion. The signed opinion is one which the justices sign, and which will be published in the case law books.
A memorandum opinion is a brief opinion that is no longer than necessary to advise the parties of the decision and the basic reasons for it. It usually does not contain a lengthy recitation of the factual history. An opinion must be designated as a memorandum opinion unless it meets one of the following criteria:
A per curiam opinion is an opinion that is unsigned by the justices and does not identify the author of the opinion. It is usually short and deals with one or two legal issues based on settled principles.
What comes after the decision?
A. Motions in the Court of Appeals
A party may also file a motion for en banc review. This motions asks the court of appeals to have the entire court review the case, in place of the three-judge panel that initially review it. This motion is discretionary with the court of appeals and must be filed while the court still has plenary power.
B. Petition for Review in the Texas Supreme Court
The purpose of a petition for review is to present the Supreme Court with reasons why the court should exercise jurisdiction to decide the petitioner’s arguments. The petition for review is filed in the Supreme Court. The petitioner must file the petition for review within 45 days after either the court of appeals rendered judgment or the date the court of appeals last ruling on all timely filed motions for rehearing.
Any other party may file a petition according to the same deadlines or within 30 days after any preceding petition is filed. After the petitioner files a petition for review, the respondent may file a response. It is not required for a respondent to file a response, and the Supreme Court will invite the respondent to file a response if the Supreme Court is considering granting the petition. If a respondent is “invited” to file a response, it is strongly suggested they do so.
The petition for review may not exceed 15 pages, excluding the list of parties and counsel, table of contents, index of authorities, statement of the case, statement of jurisdiction, issues presented, signature, certificate of service and appendix.
The petitioner must file the original plus 12 copies of the petition for review with the Supreme Court. The Texas Supreme Court is not required to hear all cases that seek relief from it. There are certain reasons why they will accept jurisdiction to hear a case:
If the Supreme Court grants a petition for review, it request the parties to brief their arguments and will set deadlines for the filing of the briefs. The Supreme Court will also decide whether argument would benefit their consideration of the case.
The Supreme Court will render an opinion about the legal outcome of the case and issue its judgment.
The Supreme Court may either affirm, modify and render judgment, reverse and render judgment, reverse and remand, vacate the judgments of the lower courts, or direct the lower court to correct the error.
A party may file a motion for rehearing in the Supreme Court within 15 days of the date the Supreme Court renders judgment. However, the Supreme Court may deny a party the right to file a motion for rehearing where justice requires.
Knowledge of the appellate process in valuable and has broad applications, from the moment a prospective client walks into your office for an initial consultation. One of the steps in advising a client of his or her options prior to trial is to explore the remedies available both at trial and after the trial is over.
Considerations such as the likelihood of success at trial, what issues are available for appeal, and what are the chances of success on appeal all factor in the risk analysis of evaluating pretrial settlement offers and possible trial outcomes.
The client’s best chance of getting close to what he or she wants is in settlement prior to trial. If settlement is not an option, then trial is the best option. Once the decision is rendered from the trial, whether by jury or judge, the chances of success decrease dramatically.
Michelle May O’Neil, president of O’Neil Attorneys and a Certified Family Law Specialist by the Texas Board of Legal Specialization, is nationally recognized as a leader in family law. She focuses on child-custody disputes, complex marital-property litigation, and family-law appeals. May also acts as a mediator for other attorneys in resolving family-law disputes.