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ASK OUR LAWYER
BY ROD TAYLOR
January 2001
Q: In last month's column, we continued
our discussion of the anatomy of a lawsuit. So far, we covered the
pre-trial and trial phases of a lawsuit. Today, we'll talk about
the appeals process.
A: Anyone who followed the nightmarish
Florida legal battle over the election results has gotten a glimpse
of the appellate process. If you saw the Florida Supreme Court hearings
or heard the United States Supreme Court proceedings, then you will
have noticed that appellate procedure is much different from the
typical trial. While the Florida legal battles were carried out
under the unblinking eye of the television camera, it did serve
illustrate how more mundane appeals happen.
Generally, if one of the parties determine that the
Judge has made an error of the law in some aspect of the case -
for example, allowing or disallowing certain testimony or instructing
the jury incorrectly on the law - that party may initiate an "Appeal."
The Appeal is a request for the State or Federal appellate court
(Court of Appeals) to review the trial court's conduct to determine
whether the Judge made a mistake of law during the conduct of the
trial. Generally, the Appellate Courts will not review the decisions
of the jury as to which evidence is more persuasive or which witnesses
should be believed or not. The Appellate Court will only review
errors of law made by the trial court Judge.
Generally, appeals are considered by a panel of three
appellate court judges randomly assigned to a particular appeal.
In certain special cases, a party can request that all members of
the Court of Appeals hear an appeal. This is called an "en
banc" hearing, and rarely granted. If an Appeal is initiated,
the initiating party has to request a copy of the trial court's
"Record" to be sent to the Appellate Court. The Record
consists of all the papers filed in the case, including pleadings
filed by both parties; all Orders of the trial court; and, the testimony
of the witnesses in the trial (that testimony is recorded by the
Court Reporter and a transcript will be produced and filed with
the Appellate Court).
Once the Record has been filed, the attorneys then
have a "briefing schedule" that they must comply with.
The party making the Appeal will file their Brief (in support of
their appeal) first . The party responding to the Appeal will get
a chance to file their "Reply Brief," and then, often,
the party making the Appeal will get a chance to file a "Rebuttal
Brief." Once the Briefs are filed, the Appellate Court will
decide whether or not to hear oral arguments on the case. Oral arguments
are the lawyers' chance to address the appellate court judges directly,
and to respond to the judge's questions. If the judges do not decide
to hear oral arguments, they will render their decision based on
the Briefs submitted by the parties.
If the judges do decide to hear oral arguments, a hearing will be
scheduled. The attorneys will be informed how long they will have
to present their argument (typically, 15 minutes to an hour, per
side). During the hearing, the panel of judges from the Appellate
Court assigned to this particular appeal have an opportunity to
ask questions of the attorneys who are presenting their arguments.
The attorneys can respond to those questions as well as present
the arguments in detail that appeared in their Briefs. Once all
the arguments have been concluded, the Appellate Court will then
render its decision as to whether the trial court's verdict should
be "Affirmed" (meaning that the Appellate Court agrees
with the trial court in its interpretation of the law) or whether
it should "Reverse" the trial court's verdict and remand
the case to further proceedings. If the matter is remanded, the
case is sent back to the trial court - either for a new trial (if
that is the remedy that will address the mistakes made by the Judge)
or for additional Orders from the Judge that will address whatever
mistakes the Appellate Court found.
As you can tell from this column and the columns from
the last two months, the entire legal process can be rather lengthy
- often running into several years. However, do not let that discourage
you from pursuing your rights in court. Most cases handled by the
A.B.A.T.E. Legal Services team are settled without the necessity
of filing a lawsuit or settled once a lawsuit is file but before
trial. Most lawyers recognize that 90-95% of all cases that get
filed are resolved without trial. However, if a trial is necessary
to protect your rights, the A.B.A.T.E. Legal Services team stands
ready, willing and capable of protecting your rights all the way
through trial and the appellate process.
If you have any questions you would like to ask the lawyer, please
submit them to: ASK OUR LAWYER, P.O. Box 2850, Indianapolis, Indiana
46206-2850, or email to mabeason@iquest.net. Although there is no
guarantee your questions will be answered, any topic you would like
to discuss will be gratefully accepted and considered.
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