Prosecuting an Appeal

When a trial court makes a judgment or order, the losing side may seek to have that order or judgment reviewed by a higher court. An appeal is essentially a peer review of the judgment to determine if the trial court made errors significant enough to warrant changing the judgment.

The first step in any appeal is taking the appeal. This involves the filing of a notice of appeal within thirty days of being served with a notice of entry. This deadline cannot be extended except for very limited circumstances, such as the death of the attorney.

Once the notice of appeal is taken, the clock starts ticking to perfect it, which means preparing the record on appeal and submitting the brief in support of the appeal. If there are transcripts, they must be corrected for typographical errors and submitted as well.

In any appeal one of the most important initial questions is to determine the standard of review.  Questions of law are reviewed without regard to what the lower court ruled on them. In contrast, the Appellate Division will give great deference to the discretion of the trial court and will consider changing discretionary rulings only if there is a finding of abuse of discretion.

Whenever possible, it behooves the side taking the appeal to focus on questions of law whenever possible.

Appeals can be taken from both final judgments and pre judgment orders. An appeal from a final judgment brings up for review all non final orders as well. However, an appeal from an interlocutory order (non final order) allows review of that order only.

Not every order is appealable as of right. The order must be made on notice. Orders not made as a result of a motion are not appealable as of right. Instead, the party seeking to appeal must make a motion for permission to appeal.

There are many procedural traps for the unwary. Appellate litigation involves a very different skill set than what is required to write a motion or trial summation.

 

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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