All appeals begin with the Notice of Appeal. Filing this document gives an appellate court the jurisdiction to hear an appeal. For trial counsel it is important to appreciate three characteristics of a notice of appeal:
First, a notice of appeal is time sensitive. It must be filed within the time period specified by law, usually measured in days, not months. If filed after the prescribed time the client’s right to appeal is likely lost.
Not only must trial counsel be alert to the time period, but he or she must also be alert to what triggers the running of the time clock. For example, in New York an attorney trying a breach of contract action in Supreme Court, New York County, and an attorney trying a child custody proceeding in Family Court, have 30 days to file a notice of appeal, but what starts the 30-day clock running is not the same in both courts.
Second, the wording of the notice of appeal can be critical: certain language can limit the scope of the appeal to the detriment of the client. For example, a notice of appeal which states the defendant is appealing the "amount of damages," will foreclose appellate review of liability and evidentiary rulings made at the trial.
What is often not understood by trial counsel and client, is that filing a notice of appeal does not obligate the client to actually undertake an appeal.
Filing a timely notice of appeal keeps open the client’s option of pursuing an appeal. Many times clients will not be able to decide within 30 days whether they actually want to appeal, and before making a decision will want an evaluation of whether an appeal has sufficient merit to warrant the expenditure of time and resources.
In these circumstances the notice of appeal acts as a place holder: it preserves the right to appeal without requiring the client to follow through with an appeal. If the client decides not to appeal, the notice of appeal can be withdrawn. If the client decides to go forward with the appeal the timely filing of the notice of appeal makes that decision viable.
If a timely notice of appeal has been filed and the client decides to go forward with the appeal, the appeal must be “perfected”— meaning the briefs and record of the case must be filed within the time period set by the appellate court.
The timing and content of the notice of appeal, an evaluation of the merits of an appeal, and the perfection of an appeal are all matters trial counsel should strategize carefully.
Many times trial counsel want to maintain their client relationship during the appellate process. In these circumstances, trial counsel can remain the attorney of record in the appeals court while appellate counsel is designated as “appellate attorney” in court filings and does the work to achieve a successful appeal.
During trial is also one of the most important times to be thinking about appeals. Trial counsel often benefit from the strategic thinking of appellate consulting in support of, or in opposition to, summary judgment motions, on legal questions which arise at trial, and on preserving issues for appellate review.
For questions on the appellate process, a specific appeal or case, it starts with a conversation. To schedule: