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Ask Our Lawyer - 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 brianshadiow@abatelegal.com. Although there is no guarantee your questions will be answered, any topic you would like to discuss will be gratefully accepted and considered.