Appeals
Depending on the circumstances, there may be options to have an unfavorable court order changed or even obtain a new hearing or trial. There are, in essence, two methods for doing this:
One, you can file a motion for new trial or for reconsideration in the trial court. In that case, you would be asking the same judge (or court) to rehear your request. This is a viable option if new evidence arose that you did not know about before the initial hearing or if you think the court did not follow the law correctly. There are no do-overs in trial court simply because you did not like the outcome; you must show why the initial hearing was unjust to be entitled to a second review. If this is the appropriate course of action, Beth will typically work with your current trial attorney to assist with the preparation of the motion for new trial or any other briefing required by the trial court. This process is extremely time-sensitive, so if you are considering this path, you must discuss this option with your attorney immediately after the trial or hearing.
Two, you can seek relief from the court of appeals. In this case, Beth would need to review all the relevant pleadings, transcripts, and orders and then draft and file a brief in the appellate court asking a three-judge panel to review the trial court’s decision. The appellate court, for the most part, will not reconsider any issues of fact but will only consider whether the facts (as decided by the trial court) were properly applied to the law. Thus, in this case, to be entitled to relief, you typically must show that there was some legal error or literally no evidence to support the outcome in the trial court. Although Beth can provide hypothetical guidance without reviewing the record, a full review is necessary to answer any specific questions about your case.
Appellate Process
An appeal generally begins with a notice of appeal filed in the trial court. Unless something has altered the deadlines, the notice of appeal must be filed within 30 days after the signing of the judgment you wish to appeal. Next, you must ask the trial court clerk and the trial court reporter to file records in the appellate court so that the appellate court will be able to see what happened during the case. Once the records are filed in the appellate court, you will have 30 days to file a brief, the other side will have 30 days to respond, and you will have 20 days to reply. Thus, absent any extensions, it generally takes a minimum of 4-and-a-half months from the signing of a judgment to the completion of briefing—but there are usually at least a few 30-day extensions. After the briefing is completed, the appellate court will assign a date (a “submission date”) to your case, upon which it will review the briefs, record, and relevant legal authority and make a decision. The submission date will likely be about 2–6 months after the completion of the briefing, and the issuance of an opinion will likely happen about 2–6 months after the submission date. So, on average, an appeal will take approximately 18 months, give or take 6 months.
A petition for writ of mandamus is very similar to an appeal; however, mandamus relief is only available when (1) the trial court clearly abused its discretion (e.g., failed to follow a clearly written statute) and (2) you lack an adequate remedy by appeal. What constitutes “adequate” can be debated, but because temporary orders in family law cases become moot after a final order, they cannot be appealed. For this reason, temporary orders can only be reviewed through a petition for writ of mandamus. The mandamus procedure is generally the same as that for an appeal, but time is of the essence, and everything—both on your end and the court’s—moves faster. And, while there is no 30-day notice deadline in a mandamus proceeding, if you wait too long to seek relief, the court may decline your request for that very reason alone.