On behalf of The Marks Law Firm, L.L.C. posted in Appeals on Friday October 4, 2013
In the previous post, we discussed post-trial motions as a way to correct part of your judgment you feel wrong on the facts or the law (or both). In this post, we discuss what to do if those post-trial motions fail.
Once the trial court rules on your post-trial motion or the 90 day window passes, you have only ten days to file a notice of appeal, which serves as your intent to take your case to the court of appeals.
In Missouri, every person who feels aggrieved by a trial court judgment has an automatic right to have that case reviewed by the intermediate courts of appeal. We have three such courts, based on geography – the Eastern District, the Western District and the Southern District. The notice of appeal begins your case in the appropriate appellate court.
After filing a notice of appeal, your family law attorney will file the record on appeal, which consists of the important pleadings, the trial transcript and any relevant exhibits.
After the filing of the record on appeal, your family law attorney has sixty days to file your brief. The brief raises all the points of error you believe the trial court committed. Generally, you take issue with a particular ruling and state the basis of the error, which is either an error of legal interpretation or an error of applying the law to the facts of the case. So, for example, giving legal custody rights to a parent who is a registered sex offender and prohibited from such custody rights is a straight error of law. A factual error would be another way of stating the judgment was against the weight of the evidence. For instance, to award maintenance, the party must prove financial need; if the evidence showed that both parties earned the same income and had similar expenses, awarding maintenance would be a misapplication of the law to the facts in the case, or against the weight of the evidence.
Once your attorney raises all of the errors and files your brief, the attorney for the other side has thirty days to file a brief in response. Obviously, that party will defend the judgment as perfectly sound and correct.
Once the other side files its brief, you have fifteen days to file a reply.
After you file your opening brief, the appellate court will ask the parties if either would like oral argument – the chance to appear before the appellate court and argue the case. Most attorneys will request oral argument.
The appellate court assigns the case to a panel of three judges who will hear argument and determine your case. The court will issue an opinion as quickly as one or two weeks, but generally six to eight weeks after submission.
After the appellate court issues its opinion, if you still dislike the outcome, you have more limited options. You can ask for a rehearing before the full appellate court, which is seldom granted. Or you can ask for a transfer to the state supreme court, the highest court in Missouri. The supreme court takes only a small percentage of the transfer applications, and the ones they accept involve either an important issue raised or a conflict in the appellate courts. If you do not get transfer, your journey ends. If you did get transfer, briefs are filed anew and argued before the full seven judge court. Win or lose, you will have a decision from the highest court in the state!
The appellate process requires a skill set different from that of an attorney at the trial level. To assure your best chance of success, you should retain an attorney with significant experience writing and arguing appeals.
If you have questions about an appeal in your family law matter, contact our St. Louis family law attorneys – we can help.