Prosecution of an Appeal

Prosecution of Appeals

By J. Douglas Barics
Suffolk County Appellate Counsel

At the Law Office of J. Douglas Barics, we will make sure your appeal is handled correctly from start to finish.

The appeal itself is taken by the filing or service of the notice of appeal. There is a strict deadline in taking the appeal which cannot be extended. The notice of appeal itself must confirm to strict standards on certain aspects which also cannot be amended after the time to take the appeal has expired; the appeal must be to the correct court and the appeal must sufficiently describe the order or judgment being appealed. Likewise, the scope of the appeal is also defined in the notice of appeal.

An error or mistake at this phase of the appeal can be catastrophic as they cannot be corrected later one. While most appeals are properly taken, every once in a while an improperly taken appeal will be dismissed even after the appeal is fully briefed.

Having a knowledgeable appellate attorney at the start can make sure these simple but fatal errors don't creep into your appeal.

Once the appeal is taken, it must be completed in six months. This process is known as perfecting the appeal.

Here, the brief itself only begins to exist in concept.

The first step any appellate attorney should do is review the order being appealed, specifically at the provisions which are "ordered" or denied. The discussions leading to the ordered parts are not appealable; the Appellate Division will only review how the trial court arrived at its decision if the results themselves are not being challenged.

At the Law Office of J. Douglas Barics, we review the order or judgment and discuss with you what can be appealed, and if necessary, the roadmap how to expand your appeal should it be necessary.

The next step is a review of the record. The record on appeal consists of the transcripts and all underlying papers.

J. Douglas Barics knows what to look for in the appellate record.

• Was evidence at trial improperly excluded?
• Was evidence at trial improperly included?
• Were the rules of procedure properly followed?
• Was hearsay improperly admitted at trial?
• Were the arguments properly made at trial?
• Were timely objections made at trial?
• Did the trial court make a mistake of law, of fact, or did it abuse its discretion?

These questions, and more, will be addressed and discussed with you, as they affect both what the Appellate Court can do in the appeal, but also the strength of the appeal itself.

Appellate lawyer J. Douglas Barics is well versed in identifying these issues from the record.

Writing the brief itself will start after the record is thoroughly reviewed and understood.

Many inexperienced attorneys will write the brief from beginning to end. Sometimes this approach will work, but more often than not writing an effective brief comes from writing it out of order.

The appellate counsel is the eyes and ears for the appeals court, and the statement of facts is where the appellate division looks to understand what happened in the trial court. Many appeals are won or lost in the statement of facts. They must accurately convey what happened at trial but the errors themselves should be apparent.  A well written statement of facts should result in the reader knowing what the arguments will be.

Appellate attorney J. Douglas Barics will often do multiple revisions of the statement of facts. Accurate facts can be presented in different ways. Chronological or issue framing are two examples, and sometimes one approach looks good in concept but it fails to deliver the intended message.

Once the facts are finalized, the arguments are next. Each argument will rely on the stated facts so as to avoid duplication.

Upon writing the arguments, Attorney J. Douglas Barics will often revise the facts so as to ensure that all facts relied on in the arguments are clearly laid out, while moving less critical facts to the background.

The questions presented is usually the next step. These are a series of questions posed and answered by stating how they were decided in the trial court. These questions are designed to help facilitate an understanding of the brief.

The final part to be written are the heading sections. For simple appeals, they are often just headings and nothing more, but with more complicated appeals they can become a compelling part of the argument. Consider the contrast between these two headings.

The lower court erred in granting summary judgment to the plaintiff.

- versus -

The trial court committed reversible error in considering triple hearsay some of which was based on speculation, as the evidence considered created numerous questions of fact which can only be resolved at trial, making summary judgment inappropriate.

If you feel you might need an appeal from a trial court order of judgment, please schedule a consultation for a through review of your appeal so that you can make an informed decision on how to best proceed.

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions, contact our office to learn about your legal options for protecting your rights in any appeal. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.