Defending an Appeal
Defending an Appeal
Defending an appeal has certain natural advantages over the side taking the appeal. The status quo is in favor of the non appealing side and the side taking the appeal is faced with meeting all procedural requirements necessary to perfect it.
Any initial review should involve determining of appellate jurisdiction was properly obtained, as this is one defect that cannot be cured.
The next line of defense is to look for other procedural irregularities and determine if they warrant litigation. Non jurisdictional defects can be cured at the court's discretion, which tends to be liberally granted.
Errors in perfecting the appeal form another line of defense, an improper record, or a brief that refers to matters de hors the record should also be investigated.
Analyzing the standard of review and attempting to focus on standards less favorable to an appellant is another aspect in defending an appeal. If the argument can be framed as issues involving discretion or credibility, the odds shift to the defense.
These concepts when interwoven with a strong argument on the merits of the case can amplify the defense greatly. Not every case involves every defense beyond the merits, but when they do exist they should be exploited as part of an overall strategy.
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.
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For a free phone case consultation or to schedule an office meeting, call 631-864-2600.
Appeal Overview
An appeal is a request to a higher court to review the trial court for errors made by the court. An appeal is fundamentally different than a trial court, both in a prosecution or defense.
Prosecution of Appeals
Prosecuting an appeal begins with the filing of the notice of appeal or making a motion for permission to appeal. The record must be prepared and the brief must be written and filed.
Defense of Appeals
Defending an appeal involves responding to the appellant's brief and explaining why the lower court was correct in its determination, or if any mistakes were made, they were minor.
Cross Appeals
An appeals court can only grant relief to the side who files a notice of appeal. When both sides request appellate relief, both sides must argue their appeal and defend against the cross appeal.
Stay of Enforcement
A stay of enforcement is not automatic but must be requested. In some instances this stay may be automatically granted. If an automatic stay of enforcement is not available, then a motion for a discretionary stay of enforcement can be requested by a motion.
Appellate Motion Practice
Appellate motion practice can resolve numerous procedural issues to ensure an appeal is heard on the merits and not dismissed.
5704 Review
A CPLR 5704 review is not an appeal. Its an expedited process for appellate review of an ex parte order, and usually takes one or two days for a decision.
