Table of contents
- The Administrative & Financial Reality
- The Waiting Game & The Briefing Phase
- Oral Arguments
- The Decision and The Odds
- Conclusion
- Frequently Asked Questions
The legal appeal process begins with filing a notice of appeal. This notice formally informs the trial court and the plaintiff that you are filing an appeal. If you do not file a notice of appeal within the deadline (Table 1), your appeal is dead.
Now, what happens after an appeal is filed?
The higher court (appellate court) does not open your file immediately. The actual review process is months away. The trial court clerk compiles court records, sets schedules, and attorneys for both sides start preparing their briefs (written arguments).
The appellate court’s proceedings are based strictly on written briefs and oral arguments (if granted). No new evidence or testimony is allowed as an appeal is not a re-trial.
After reviewing the briefs from both sides, the panel of judges issues one of the following written judgments:
- Affirm (the trial court was correct)
- Reverse (the trial court was wrong)
- Remand (the “fix-it” order)
- Vacate (the decision is wiped out)
- Dismiss (the court refuses to hear the appeal)
| Jurisdiction/Court | Case Type | Deadline (days) |
|---|---|---|
| Federal Court | Criminal Case | 14 |
| Federal Court | Civil Case | 30 |
| Federal Court | Civil (U.S. Gov. Involved) | 60 |
| State Court | Civil & Criminal | 30 to 60 |
The Administrative & Financial Reality
What Happens After a Notice of Appeal is Filed
Filing a notice of appeal results in the divestiture of jurisdiction.
However, filing an appeal does not automatically pause the enforcement of the trial court’s judgment.
The “Stay Pending Appeal” Shock
If the trial court orders you to pay damages or surrender property after losing a civil case, filing an appeal does not stop it. The winning party can immediately begin freezing bank accounts, garnishing wages, or placing liens on real estate. Your attorney must file a Motion for a Stay Pending Appeal to freeze these actions.
An appeal can go on for months or years. This is why the court requires you to secure a supersedeas bond to grant the stay. This bond requires cash or cash-equivalent collateral representing 100% to 125% of the total judgment amount. The other party is legally free to liquidate your assets if you fail to provide this upfront collateral.
Ordering the Record
Your appellate lawyer files a Notice Designating the Record to obtain the clerk’s record and the reporter’s transcript.
The Clerk’s Record
Every written motion, pleading, order, exhibit, and jury instruction filed during the litigation
The Reporter’s Transcript
A word-for-word transcript of everything said in the courtroom by the judge, the lawyers, and the witnesses
Addressing the Evidence Rule
You cannot introduce new evidence, call new witnesses, or submit fresh facts in the appellate court. The sole purpose of the appellate court is to audit the trial judge’s decisions based strictly on the information the judge had on the table at that time.
The Waiting Game & The Briefing Phase
The Mechanics of Appellate Court Procedure
The appellate court issues a briefing schedule. The panel of judges makes its decisions based almost entirely on the formal written briefs.
The Appellant’s Opening Brief
The party that files an appeal gets the first opportunity to submit a brief. The appellant’s brief highlights specific reversible legal errors made by the trial judge. Common reversible errors include:
- Improper evidence admission or exclusion
- Incorrect jury instructions
- Misinterpretation of the law
- Abuse of discretion
- Insufficiency of evidence
The Appellee’s Response Brief
The other party responds to your brief by filing a response brief. The goal of the response brief is to show that the trial court judge followed the law.
They may argue that even if a minor mistake occurred, it was not significant enough to affect the trial court’s judgment.
The Appellant’s Reply Brief
You get to say the final words by presenting a reply brief. This brief is a response to the response brief, poking holes in the defense’s argument.
Managing Time
An appeal can take anywhere from a few months to more than a year to resolve. There are gaps of several months between brief filings.
- Each side gets 30 days to draft their briefs.
- Appellate courts often grant 30- to 60-day extensions to attorneys to read thousands of pages of transcripts and conduct legal research.
- Your briefs are often sitting on the clerk’s desk for months due to court backlogs.
Oral Arguments
If your case is granted an oral argument, each attorney gets 15 to 30 minutes to present their case. The judges in the panel grill the attorneys on specific legal precedents, potential flaws in their logic, and the real-world consequences of their arguments. Oral argument is entirely optional. Intermediate appellate courts often decide cases strictly on the written briefs. They completely bypass oral arguments.
The Decision and The Odds
The Post-Argument Waiting Period
Once oral arguments conclude or briefs are submitted, a formal written opinion can take anywhere from 3 to 12 months.
The Standards of Review
The Standard of Review dictates your odds of winning.
De Novo Review
The appellate court gives zero deference to the trial judge and looks at the issue with fresh eyes.
Abuse of Discretion/Clear Error
Unless the decision was completely arbitrary or wildly irrational, they will not overturn it.
The Hard Math
There is a very low reversal rate in both federal and state courts, ranging between 7% and 15%.
Outcomes
The appellate court issues one of the following written judgments:
Affirm
The appellate court agrees with the decision of the lower court. Your appeal has failed, and the original judgment stands.
Reverse
The appellate court finds a fatal legal error and completely overturns the lower court’s decision.
Remand
The panel of judges sends the case back to the trial court with instructions to correct a specific error. This can lead to a motion being reheard or a new trial.
Vacate
The appellate court renders the judgment void because of a fundamental flaw in the proceedings, such as a lack of jurisdiction, a fatal legal error, or a significant change in the law that occurs during the appeal.
Dismiss
The appellate court does not hear your appeal because you made a fatal procedural error, such as missing the 30-day deadline.
Conclusion
An appeal is not a new trial. The legal appeal process is long. How long does an appeal take depends on the complexity of the case and the court’s schedule. However, be prepared for a battle that will last for months or more than a year.
Frequently Asked Questions
How long does an appeal usually take to resolve?
An appeal can take anywhere from a few months to well over a year.
Can new evidence be introduced during an appeal?
Appellate courts do not accept new evidence and testimony. An appeal is simply an audit of the trial court’s record.
Does filing an appeal automatically stop the original judgment from being enforced?
No, you have to file a Stay Pending Appeal to stop the original judgment from being enforced.
What are the chances of winning an appeal?
The chances of winning an appeal are very low, somewhere between 7% and 15%.
What happens if the appellate court disagrees with the lower court’s decision?
The appellate court may issue one of the following rulings if it disagrees with the lower court’s decision:
- Reverse
- Remand
- Vacate
Can a case be appealed more than once?
You may appeal to a state supreme court or the U.S. Supreme Court. However, these courts have discretionary jurisdiction, meaning the court decides whether to hear your appeal.
