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Frequently Asked Questions
Navigating the appellate process can be daunting. We’re here to guide you every step of the way.
An appeal is a process where a higher court takes a look at the decision of a lower court to see if any legal errors made below affected the outcome of the case.
Most cases, including civil, criminal, and family law cases, can be appealed if there is a legal basis to challenge the lower court’s decision that your trial attorney preserved.
Possibly. If you believe the trial court made a legal error that affected the outcome of your case, you should at least look into it. Our attorneys can review your case to determine if an appeal is appropriate.
You being the process by filing a Notice of Appeal in the district court. You must file that notice “within 30 days after the entry of the judgment or order” you are appealing from. This deadline is not optional, and if you do not file the notice of appeal within that 30-day window, the appellate court will lose jurisdiction to consider your case. Only after you file your notice of appeal will you begin the rest of the process.
If you miss the 30-day window, there is not much you can do. You may file a motion to reinstate an appeal, but in Utah that motion will not be granted merely because you missed your deadline. Instead, that motion will be granted only if you can show the court that it should reinstate your appeal for one of the enumerated reasons listed in Rule 23A of the Utah Rules of Appellate Procedure.
Yes. Your trial attorney can file a notice of appeal for you in the district court to preserve your right to appeal. This does not mean your trial attorney will represent you on appeal. It only means that he or she is preserving your right to appeal.
An appeal generally takes about two years, from start to finish. There are some outliers that may take more time or less time, but the entire process is usually around two years.
Only after you file your notice of appeal will you begin the rest of the process. That process includes ordering transcripts of the proceedings, ordering a copy of the record, getting the briefing schedule from the appellate court, and having an appellate attorney review the record. After you have discussed any appealable issues with your appellate attorney, your attorney will draft and file your Appellant’s Opening Brief, and a briefing exchange ensues. If you are appellee in this process, you will only respond to the opening brief with an Appellee’s Responsive Brief. If you are appellant, you will file both an opening brief and an Appellant’s Reply Brief.
After briefing is completed, your case could be called for oral augment. An appellate court does not hear oral argument in every case; sometimes it issues a written order or opinion without argument. You may ask your attorney to request oral argument, but that request is not always granted. In the months after argument or after briefing, your case will be decided by a panel of judges who will then begin to draft the opinion. Once the opinion has been reviewed and edited by all of the judges on the panel, it is reviewed and edited by the appellate court clerks, and then it is published and made available to the public.
Generally, no. On appeal, the trial or pre-trial record is the entire factual universe that the appellate court will consider. An appeal is not a “second bite at the apple.” You should never count on making arguments or presenting evidence on appeal that you failed to present to the trial court. In fact, appeals are regularly denied when a party relies on evidence outside the record.
The one exception to this rule is found in criminal cases and is available in accordance with Rule 23B of the Utah Rules of Appellate Procedure. Under this rule, criminal defendants may try to admit evidence that their trial counsel provided unconstitutionally ineffective assistance at their trial.
The number of issues you raise is not limited by rule, but in Utah your attorney must file an opening brief with 14,000 words or fewer. That is 1,000 words more than the United States Supreme Court allows. That is room for about three to four well argued issues, although you should consider raising only your strongest issues.
To get a reversal on appeal, you must show not only that there was a legal error, but also that the error prejudiced the outcome. So the strongest issues on appeal are those issues that impacted the outcome of your case in a demonstrable way.
Appeals usually cost less than trials, but and, like trials, there are a lot of variables that factor in to cost. Some of those variable include how long the proceedings lasted, how many issues you raise, whether you file a reply brief, and whether the court hears oral argument.
The answer to the attorney fee question depends on a number of things. First, you have to have a legal basis–in contract or statute–to collect attorney fees. Second, you can only collect attorney fees on appeal if you litigated attorney fees below. And third, you must be deemed the “prevailing party” in your matter.
The remedy depends on the issue won. In some instances, you will get a new trial. In some instances, the case will be remanded back to the trial court for the trial judge to reconsider things under a new lens. In some criminal matters, the entire case could be thrown out. Whether your case is remanded for reconsideration or thrown out entirely will entirely depend upon the particular mistake or legal error.
Generally, an appeal does not require a new trial. Oral arguments may be held, but they are typically focused on legal issues rather than factual disputes.
Yes. There are a variety of post-trial motions you may file to encourage the district court judge to reconsider the outcome of your case. An appellate attorney can you help decide if any of these motions are appropriate in your case. But you must file them even more quickly than you must file a notice of appeal. So act fast.