Defending an Appeal
Long Island Appellate Defense Attorney
You've won at trial but now you're facing an appeal. Appellate litigation involves a very different approach than trial level strategy. At trial, you decide which arguments to make and how to present them to the court. If you succeed, then the focus changes having those choices scrutinized and reviewed to see if the trial judge was correct in deciding in your favor.
Appellate defense is fundamentally a reactive role, as it is presumed the trial judge was correct and the burden is on the appellant to show otherwise. That means a defense of an appeal is to show the arguments raised in an appeal are insufficient to warrant changing the judgment or order being appealed.
At the Law Office of J. Douglas Barics we have over twenty years of experience in appellate litigation and are well versed appeals, and are well equipped to defend any appeal no matter how complex or simple it may appear.
What You Need to Know About Defending an Appeal
What is defending an appeal?
Defending an appeal is the argument against the side which is appealing an order of judgment. The job of the side defending the appeal is to convince the appellate court there was no error made by the trial judge significant enough to change the order being appealed.
Defending an appeal simply means the respondent does not want the underlying order changed.
What is the difference between defending an appeal and defending a case at trial?
Defending an appeal is arguing the trial court did not make any errors in deciding the arguments raised in that court. Defending the same case at trial involves deciding what those arguments are, and how to present them.
Who is the respondent in an appeal?
The respondent is the side defending the appeal. New York does not use the term "appellee".
What kind of defenses exist against an appeal?
The defenses against in appeal will generally fall into one of the following categories.
- A jurisdictional defense
- A procedural defense
- Errors in the record
- The argument was unpreserved
- Arguments about which standard of review is appropriate
- That the error was harmless
What is a jurisdictional defense?
A jurisdictional defense argues the Appellate Division lacks the authority to decide the appeal. It focuses on whether a fatal mistake was made by the appellant in taking the appeal. If the defense is jurisdictional, it cannot be cured. Jurisdictional defenses include the following.
- The appeal was taken too late.
- The appeal was to the wrong court.
- The notice of appeal failed to sufficiently describe the order being appealed
What is a procedural defense?
A procedural defense asserts there was a mistake in perfecting the appeal that could have been cured but was not. The appellate division has the authority to cure procedural defenses prior to the appeal being decided or as part of the order deciding the appeal. Procedural defenses include the following.
- The appeal was taken from the wrong order
- The appeal could not be taken as of right and there was no order granting permission to appeal
What are errors in the record?
Errors in the record is a procedural argument that claims the record on appeal is wrong to such an extent that the appellate division is deprived of the ability to make a proper review of the case. Errors in the record include the following.
- Insufficient Appendix
- Material missing from the reproduced record
- New information added to the record
- Unsettled transcripts
What is an unpreserved argument?
An unpreserved argument asserts that the argument raised on appeal was not made in the lower court. Since the argument was not made, the lower court could not address it, and therefore since there was no ruling by the lower court, no error was made by the lower court.
There are a small number of exceptions to arguments being unpreserved.
What is the standard of review?
When the error is an error of law, the appellate division will consider the issue without considering how the lower court ruled.
When the error is an abuse of discretion or credibility, the appellate division will place great deference to the lower court.
The best appellate lawyers will always try to frame the issue as a question of law in prosecuting the appeal, while the best appellate lawyers defending an appeal will try to frame the issue as a question of discretion.
What is a harmless error?
A harmless error is an error made by the lower court which is insignificant and should not change the results. Sometimes it is possible to concede some errors were made and assert they were harmless.
How are cases raised by the appellant addressed by the respondent?
Each case cited by the appellant should be reviewed. If the case does not apply, state that in the respondent's brief. If the case was misquoted, state that in the respondent's brief. If the case can be distinguished, state that as well.
How does the respondent address factual claims raised by the appellant?
Review the record for the facts and show why the factual rulings were correct based on the information submitted to the lower court.
Contact Our Appellate Counsel Today
At the Law Office of J. Douglas Barics, we have the skills and knowledge to handle any appeal, no matter how challenging or complex. With over 20 years of appellate experience, we can bring to you the services of a large firm at a fraction of the cost. When you need a skilled appellate lawyer located in Suffolk County, call The Law Office of J. Douglas Barics.
For a free phone case consultation or to schedule an office meeting, call 631-864-2600.