Appeal? As an appellate attorney, one of the common questions I get from my potential clients is “How long will it take before I get a decision in my civil appeal?” I give them a very lawyer-like answer: “It depends.”
I understand how frustrating it can be to get such an answer. However, I don’t
think any appeals lawyer can predict exactly how long an appeal will take. It depends on how complicated the case is, how many issues are contested, the vigor of the opposing party, how many parties are involved, whether any amicus curia (“friends of the court”) have intervened, whether any politically sensitive issues are involved and the overall workload of the court of appeals. Some cases can be decided in less than a year; some can take as long as three years.
I think it is useful for my clients to understand a little about appeal law, so they can have reasonable expectations about how long their case might take. (I have explained the process that I go through in evaluating a case in http://www.popelawtx.com/blog/2012/04/free-initial-evaluation-of-your-case/)
To that end, here are the basic steps of an ordinary appeal from a district court in Texas:
Steps in an appeal –
- Day One –
Notice of Appeal The first step in any appeal is to file a “notice of appeal” with the district court. The notice lets the other parties to the case
and the court clerk know that an appeal is coming. The notice is also filed with the relevant court of appeals. (NOTE: There are very important deadlines that you must meet for the filing of an appeal. If you are thinking about an appeal, you must act quickly – sometimes within 30 days after the judge issues an order – to get your notice of appeal filed. If you are thinking about an appeal, consult an appeal attorney immediately.) The prudent appeal lawyer will also file a
request for the court reporter to prepare the transcript and the court clerk to
prepare the record.
- Day Two –
Docketing Statement – After the appeal is filed, the losing party must also
file a “docketing statement” with the court of appeals. The docketing statement is an information sheet that tells the court of appeals what type of case is involved, who the parties are, what court issued the opinion and other information required by the rules.
- Day Sixty
(or later) – Appellate Record – The court clerk’s record and the court
reporter’s record are generally due sixty days after the court’s judgment is
signed. That time can be later if certain motions have been filed in the district court, but generally will not be later than 120 days after the judgment was signed.
Ninety (or later) – Initial Brief – Assuming that the records were filed on
the sixtieth day, the party bringing the appeal must file the initial brief with
the court thirty days later. The brief explains to the court the facts of the case and the law that should apply to the case and explains why the district court’s opinion should be overturned. There are several rules that explain exactly how the brief is to be formatted and sent to the court.
- Day One
Hundred Twenty (or later)- Response Brief – The party who won at the
district court files its brief thirty days after the initial brief was filed by
the party bringing the appeal. In this brief, that party disputes any statements of fact that it finds inaccurate and explains why the law supports a decision in its favor.
- Day One
Hundred Forty (or later) – Reply Brief – After the winning party has filed
its response brief, the appealing party has twenty days in which to file a “reply”
brief. The reply brief argues against the brief of the other party and explains why the law and facts require the case to be overturned. This is the last date that has a deadline in the rules.
Unknown – Oral Argument – Parties may request a chance to talk to the
judges of the court of appeals in what is called “oral argument.” The court is not required to grant oral argument. At the oral argument, the parties discuss with the court the facts and the law in a formalized give-and-take. The court of appeals judges ask questions about the portions of a party’s case that they find
troubling. Experienced appellate lawyers welcome questions from the bench.
Unknown – Decision – After the judges study the case, they meet together and decide which side should win. One judge is assigned to write the opinion. For most cases in the court of appeals, a three judge panel decides the case.
The courts try to get these opinions out fairly quickly. For example, in 2011, the Third Court of Appeals based in Austin, had an average of 7.9 months between the time the case was filed and it was disposed. During that same time period, it only had two cases that had been pending more than two years. Parties wanting to take an appeal should know that most result in the district court’s opinion being upheld. Of 525 cases resolved the Third Court of Appeals, 149 were affirmed and only 65 were reversed in whole or in part. Over 300 cases were dismissed or “otherwise disposed.”
Most appeals in Texas end after the decision issued by the panel of Court of Appeals judges. It is possible to ask that all of the judges of a Court of Appeals review an opinion that is rendered by the panel, but that is rare. It is also possible to take a case from the Court of Appeals to the Texas Supreme Court. However, that Court can choose whether or not to hear a case, and it chooses to take only a very select number of cases.
Still want to take an appeal?
If you are interested in taking an appeal, please contact me at firstname.lastname@example.org as quickly as possible. Your appeal may be dismissed if you miss the deadlines for filing an appeal. After you contact me, I willevaluate your case and let you know if I think I can help.