Prosecution of an Appeal
Long Island Appeals Lawyer & Prosecution of Appeals
Deciding whether to appeal an adverse judgment or order can be daunting. It is not a small endeavor, and it carries significant costs.
As appellate counsel, we review the order or judgment and discuss with you what issues are present in your appeal. In our review, we examine the following:
- 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 will be discussed with you, as they affect both what relief can be granted in the appeal and also the strength of the appeal itself.
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 as to how best proceed.
What You Need to Know About Prosecuting an Appeal in New York
What is prosecuting an appeal?
Prosecuting an appeal is a request to have an appeals court review a trial court's decision making process for errors committed by the trial court.
What steps are involved in prosecuting the appeal?
- Obtain an appealable order.
- Initiate the appeal, which is properly called "taking the appeal", either by filing a notice of appeal or obtaining permission to appeal. The timeframe to preserve the right to appeal is limited and cannot be extended.
- Obtain the transcripts
- "Settle" the transcripts and resolve all typographical errors. The appellate courts are without authority to decide whether the transcripts are correct or not, any dispute over transcripts must be resolved in the lower court.
- Prepare the record. The record consists of the order or judgment being appealed, the notice of appeal, the settled transcripts, and all exhibits used by the court in deciding the case.
- Write the brief. The brief consists of a summary of facts which are contained in the record, and the legal arguments why the lower court made a mistake large enough to justify having the judgment revised in some way.
- Review the opposing brief. The opposing brief will explain why the appellant's brief is wrong and argue why the lower court was correct.
- Write the reply brief, which is to respond to the points made in the respondent's brief.
- Oral argument
- The appellate court will issue a decision and order, resolving the appeal.
What are the possible outcomes for an appeal?
- Dismissal. An appeal is dismissed if there is a procedural reason why it can't be decided.
- Affirmed. The judgment being appealed remains as is.
- Modified. The judgment is modified in some way, but remains in place.
- Reversed. The judgment is reversed and vacated.
- Remand. The case is sent back to the lower court for further proceedings.
Why can't an appeal use new arguments not made in the trial court?
An appeal is an error checking court. That means the entire focus has to be where the lower court made a mistake in deciding something, and the appeal is to determine whether the judge got it right or wrong.
If a new argument is raised, the trial judge could not make a decision on it one way or the other. Since the trial court made no decision, there cannot be error committed by the lower court.
What is the standard of review on an appeal?
The standard of review is what weight the appeals court will give to the trial court's determinations.
- For rulings on law, the appellate court will not take into consideration what the trial court ruled. Instead, it will decide any question of law as if it was being raised for the first time.
- For rulings on discretion or credibility, the appellate division will give great deference to the trial court.
What is the Statement of Facts?
The statement of facts is the part of the brief where the facts are laid out as a summary for the appellate division. They should be neutral on their face, presenting all relevant facts good and bad.
The best appellate attorneys will be able to craft a neutral set of facts that make the errors being raised in the appeal obvious to see. The arguments should flow naturally from the facts.
What are the argument points?
The argument points are the specific arguments which rely on the factual statements. Each point will explain where the appellant raised the argument in the lower court, how the judge ruled, and explain why the trial judge got it wrong.
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.