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July 13 2012

Why Do You Need An Appellate Specialist?

By: Ronald M. Redick

You have just reached an unhappy ending in a trial court – as a plaintiff, you did not get the verdict you wanted; or as a defendant, you have had an adverse judgment entered against you. Now what do you do? Assuming you were represented by legal counsel at trial, you might be tempted to “stay the course” with that same counsel. Or, if dissatisfied with trial counsel, you might be decide to go it alone, that is, to attempt to represent yourself on appeal. The former is sometimes not the best option, and the latter is almost always a mistake. Retaining the services of an appellate specialist is, more often than not, your best course of action.

The appellate process is full of traps for the inexperienced or unwary. The missing of a single filing deadline or the failure to pay a single required fee can result in the final dismissal of your appeal, regardless of the underlying merits of your case. By retaining experienced appellate counsel, you can avoid these types of fatal mistakes. Also, you can be better assured that your appeal is presented to the appellate court in a posture that gives you the best chance of succeeding on the merits of your case. Below is a summary of some of the principal areas where an experienced appellate attorney can provide invaluable assistance.

Appeal “By Right” Or “By Leave”: An unfortunate aspect of Michigan law is that a complicated set of rules have developed for determining whether a trial court order or judgment is or is not “final.” Generally speaking, only “final” orders or judgments can be appealed “by right” – meaning that the appellate court would be required to hear and decide your appeal. In contrast, if an order or judgment is non-final, then it can be appealed only by filing an Application for Leave to Appeal (i.e., known as an appeal “by leave”). In the latter case, the appellate court would have the discretion to (a) hear and decide your appeal, or (b) delay considering your appeal until a final order has been entered by the trial court. The prompt and proper characterization of an order or judgment as final or non-final is essential because of the necessity of meeting the associated deadlines for filing an appeal. If you receive a “final” order and do not meet the deadline for filing an appeal of that order, you might forfeit the right to appeal altogether. By retaining an experienced appellate attorney, you can properly identify whether you are dealing with a final or non-final order, and the deadline for the type of appeal you must file.

Where to File Your Appeal: Depending on whether you are appealing a decision made by a district court or a circuit court, or perhaps a decision made by a state or local administrative body, your appeal will have to be filed in a particular type of court. For example, appeals from the district court are heard by the circuit court, whereas appeals from most local administrative bodies are heard by the circuit court. In many circumstances, the court rules or a statute also require that the appeal be filed in a particular county or judicial district. Failure to file your appeal with the right court or in the right location can result in an automatic forfeiture of appeal rights. Once again, therefore, the services of an experienced appellate attorney are essential to ensure that your appeal is filed in the right place.

When to File Your Appeal: As noted above, the missing of a single filing deadline can be fatal to an appeal. Some of the most important deadlines arise very quickly – within 21 days or less after the order being appealed has been entered by the lower court or agency. For example, to pursue an appeal “by right,” from a circuit court to the Court of Appeals, you must file a Claim of Appeal, a required fee and certain other documents not later than 21 days after the circuit court’s final order was entered. Failure to meet this deadline is a jurisdictional defect, meaning that the Court of Appeals could refuse to hear your appeal, at all, even if you were just one day late. The lesson here is clear – not only do you need experienced appellate counsel to assist you, you need to retain appellate counsel right away, as soon as you receive an adverse order or judgment, to ensure that you do not miss any required appeal deadlines.

Making Your Case – The Appellate Brief: The most important aspect of any appeal – after all of the various procedural hurdles have been cleared and the initial filing deadlines have been met – is preparation of the appellate brief. The appellate brief is the written argument by which you try to convince the appellate court that the lower court or tribunal reached the wrong decision and should be reversed. No appeal will succeed without the preparation and filing of an appellate brief that substantially conforms to the court rules and which clearly and cogently sets forth the facts and legal arguments in support of the appeal. This is the document that will convince the appellate court that you should win. An experienced appellate practitioner can offer a variety of tools to make your appellate brief a winning one:

  • Identification and classification of the errors committed by the lower court or tribunal, which will most strongly support your request for appellate relief.
  • Presentation of the material facts in a clear and concise manner, so as to persuasively support your legal arguments.
  • Identification of issues that have/have not been properly preserved for appellate review.
  • Identification of the correct standards of review that apply to your appeal (e.g., some issues, such as the interpretation of a statute, are reviewed “de novo,” meaning without discretion to the trial court, whereas other matters, such as factual questions, are reviewed only for “clear error”).
  • Knowledge of the appellate case law that supports your arguments and which demonstrates that the trial court erred.
  • The presentation of persuasive legal arguments, setting forth, in plain language, the reasons why the trial court or lower tribunal should be reversed.

Oral Argument. In nearly every form of appeal, the parties are allowed to present oral arguments to the appellate court, to supplement the arguments set forth in the appellate brief. Successful appellate attorneys are excellent orators, and can be invaluable for this aspect of an appeal. In appeals that present “close” issues, persuasive oral arguments can make the difference between success or failure on appeal.

Other Aspects of the Appeal Process. Many other issues can and do arise in the context of an appeal: the need to file a “motion for stay” to enjoin enforcement of the trial court’s order while your appeal is pending; the need to file certain bonds on appeal; arranging for the filing of the trial court record, transcripts and exhibits; responding to motions filed by the other party; etc. A set of complex rules govern the procedures for accomplishing these tasks, as well as the deadlines for doing so. This is not territory where a litigant should attempt to “go it alone” or rely on a lawyer who is unfamiliar with appellate practice. You need an appellate specialist.

How Can Mika Meyers Assist You?: The lawyers at Mika Meyers have extensive experience in appellate law, with a focus on civil appeals. Our lawyers have successfully represented clients in the circuit courts, the Michigan Court of Appeals and the Michigan Supreme Court – both in cases where the client was asserting an appeal or defending against an appeal. Several of these cases have resulted in a published decision, meaning that these cases have established controlling law in the State of Michigan. The appellate specialists at Mika Meyers have the qualifications, expertise and experience to provide the highest quality representation to you, in connection with your appellate law issue.

Disclaimer. The above information is provided as a general guidance for understanding appellate law in Michigan. It does not constitute the giving or offering of legal, technical or other professional advice, and does not create an attorney-client relationship or other professional-client relationship.

If you have specific questions regarding appellate law in Michigan, or have questions about your specific situation, please contact Ron Redick. Mr. Redick specializes in the practice of appellate law (civil cases only) and is a member of the Appellate Practice Section of the State Bar of Michigan. He has successfully represented clients in numerous appellate proceedings in the circuit courts, the Michigan Court of Appeals, and the Michigan Supreme Court, resulting in several published decision.

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