Preserving Arguments for Appeal
In certain instances, litigants may wish to file an appeal if they think that a lower court made the wrong decision on an issue. There are many procedures and practices that litigants should be aware of when filing an appeal, and an appeal can be influenced by decisions made before a lower a court. There are certain things that litigants should keep in mind when preserving arguments for appeal that can help ensure they have the greatest likelihood of success when they bring a matter to a different forum.
Creating the Record
One of the most important considerations when preserving arguments for appeal is creating a comprehensive record that can be used on appeal. When an appellate court considers a matter, the judges are usually restricted to deciding issues that arose in the record when the case was before a lower court. The record is all of the papers that were filed with the lower court when the inferior court decided a matter. This includes motion papers, exhibits, and any other documents that the rules of a forum allow a litigant to introduce into the appellate record.
If parties want to reference a given document on appeal, they should ensure that the document was filed in connection with the matter before the lower court. Parties may wish to over-include documents to ensure that the document is available to them when they file an appeal. Of course, parties may not wish to include documents that are truly irrelevant to a matter since this may frustrate a lower court, but litigants should strike a balance to ensure they provide relevant documents which may be helpful on appeal.
Making Arguments
Another critical strategy to keep in mind when preserving arguments for appeal is that litigants can usually only amplify arguments on appeal that were first presented before a lower court. This is because appeals typically evaluate the decision of a lower court which can only be done if the appeals court is in the same position as the lower court. In addition, it can be unfair for litigants to be surprised on appeal by arguments that were not fully litigated before a lower court.
As a result, litigants may want to over-include arguments in their papers before a lower court in order to ensure that they have those arguments available if a matter is appealed. During an appeal, litigants may have more time to fully flesh out a given argument so long as they have the chance to present this argument to an appeals court. Of course, litigants need to strike a balance about which arguments to present since a court has a limited attention span and parties may want to prioritize their best arguments. Nevertheless, so long as circumstances permit, parties should include all viable arguments to ensure that they have the most points at their disposal available to present if a case is appealed.
File a Notice of Appeal
It is also very important to file a notice of appeal when preserving arguments for appeal. Depending on the jurisdiction, the notice of appeal and any accompanying documents are often the first step in the appeals process. The notice of appeal usually needs to be filed a set amount of time after the order from which an appeal is taken is filed. After a notice of appeal is filed, parties are thereafter given a set amount of time to file their records and appeals briefs with the appellate court. This later step is often called “perfecting” the appeal.
However, if a notice of appeal is not timely filed, it is usually impossible for an appeals court to perfect an appeal and have an appeals court hear the matter. This is because appeals courts usually do not have jurisdiction over a matter if a notice of appeal is not timely filed. Appeals court are typically “juristicklers” when it comes to timely filing a notice of appeals since appeals courts may want to prune their busy dockets of cases that have some kind of defect.
As a result, if it appears as if there is even a small chance that an appeal will be filed from an order, it usually pays to file a notice of appeal. There is usually a nominal cost to filing a notice of appeal, and it is easy to file the document with the court. Moreover, filing a notice of appeal can often assist in settlement negotiations since parties who may have won a matter before a lower court may still be willing to offer some amount of money to settle a case to forgo the cost of dealing with an appeal. If a party does not wish to go forward with the appeal after filing a notice of appeal, it is usually simple to withdraw the notice of appeal without consequences. Nevertheless, not filing a notice of appeal can have substantial consequences on a case if it later appears as if an appeal of a lower court decision may have been successful.
The Rothman Law Firm is experienced with preparing appeals documents and arguing matters on appeal. If you are looking for an experienced New York and New Jersey attorney to handle your appeal or other legal issue, please feel free to reach out to The Rothman Law Firm to request a free consultation.