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Prosecuting an Appeal

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.

Reach out if you have any questions

J. Douglas Barics
Attorney at Law

356 Veterans Memorial Highway
Suite 3
Commack, NY 11725


Phone: (631) 864-2600

Fax (631) 543-2888

Email: lawyer@jdbar.com

 

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