The appellate process can seem like a daunting one, especially if you’re going through it on your own.
From the first appeal to the last, there are many complex rules and procedures that can prove to be confusing even to those who have been through the process before.
To help you understand more about what will happen if your case goes to court, here’s your guide to the appellate process.
Overview of the appellate process
An appeal is a request for a higher court to overturn a lower court’s decision. This means that all of the evidence and testimony in your trial will be reviewed.
There are three levels of courts in the United States: trial courts, appellate courts, and supreme courts.
A case typically starts at a trial court and moves on through the appeals process until it either gets reversed or affirmed by an appellate court or supreme court.
In general, if you have lost your case at the trial level and want to keep fighting it, you can file an appeal with the court below yours.
If you have lost your case at any level and want to keep fighting it, you can file or write of certainly with the next level up.
The Supreme Court accepts around 100-150 cases out of 8,000 requests each year. It also reviews around 7,000 federal criminal cases per year.
However, they don’t take up every criminal case appealed to them.
They only take those that have been considered important by other courts and deal with important legal issues not yet resolved by the US Courts of Appeal.
To apply for certiorari from the Supreme Court, you must ask one of its justices to review your case.
How to file an appeal
After you have exhausted your post conviction remedies in state court, it’s time to take your case up to the next level.
Filing an appeal is a complicated process and should not be taken lightly.
It can be very helpful to work with a skilled attorney during this phase of your case as they will guide you through what needs to be done and help ensure that all of your bases are covered.
Your lawyer will prepare a Notice of Appeal for you and file it on your behalf.
The notice must include specific information about the convictions being appealed, including the date of conviction, docket number, names of parties involved in the case, name of judge presiding over trial or hearing.
If there were any rulings from trial or hearing that were used to convict you then these must also be included.
Once filed, the Court Clerk’s office will send a copy of the notice to the attorneys on both sides.
There may also be more administrative steps required at this point, such as paying a filing fee or obtaining certificates of completion from your probation officer if applicable.
The Court Clerk’s office forwards copies of the notice of appeal to each party listed on your original judgment and order so that they may respond if desired.
The briefing process
Most appellate briefs are written in a large typeface, called hanging indents, which is set off by a line of white space on each side of the text.
The brief should be one page in length or two pages at most, and it should have Table of Contents and Table of Authorities sections at the beginning.
Put your name and address on the front page, not on subsequent pages.
Do not sign the brief until you submit it to the court clerk, but date it when you write or type it up.
You will also need a caption for your document that tells what court this appeal is being filed with, who is appealing and what issue(s) are being appealed.
A table of contents and list of authorities can be found in the body of the brief itself after all necessary background information has been provided.
The appellant’s argument begins immediately following the Table of Contents.
The respondent’s response (brief) will then follow the appellant’s reply (brief).
Lastly, an appendix should be included if necessary; any exhibits or documents referenced in the case should be included as well.
The oral arguments are the most intense part of your case, as it is when you get your chance to speak.
In this section, you will want to make sure that you are prepared for cross-examination and rebuttal.
You may also be called upon to testify during oral arguments, so prepare for that by practicing with a friend beforehand.
If you know the facts well, tell them in a clear and concise way.
As always, be honest about what you know:
It’s okay if you don’t know something or can’t remember something just say so.
A good way to practice before an argument is to answer questions from your opponent before or after the event not during it!
It will help you anticipate questions and think on your feet better.
You can also research previous cases for information about how judges have ruled in similar circumstances.
Again, honesty is key. Don’t try to spin anything or mislead the court into believing something untrue; they will see right through it.
The appellate court reviews the lower court’s decision on whether or not it agrees with it.
If they decide that the lower court made a mistake in their decision, they’ll reverse it and send it back for a new trial.
If they believe that both parties were wrong and there was no actual harm done, then they’ll remand the case back to the lower court for reconsideration.
They may also uphold the lower court’s decision if they agree with it but still make some changes to either enhance or diminish what is being asked for.
There are five types of decisions an appellate court can make: affirm, reverse, vacate and remand, dismiss as moot (not an option in criminal cases), or deferral.
A motion for deference is filed when one party feels that the court should be more cautious in making a ruling because it will have broad implications.
The process after an appeal has been decided by the Court: One party will file a petition for certiorari, asking the Supreme Court to hear their argument.
If this petition is granted, then all documents from both courts are sent over to the Supreme Court, and each side gives oral arguments about why they should win at this level.