Timing

When he was working as a court of appeals briefing attorney, Chad Ruback heard an appellate justice say that it is never too early to consult with appellate counsel.  Chad has seen this proven true again and again.  Trial attorneys and appellate attorneys bring different skills to a case and, whenever possible, should begin working together on a case long before the deadline to file a notice of appeal.

Having an appellate lawyer participate in the early stages of a case has several notable advantages.  First, an appellate lawyer can take steps to ensure that there is a rock-solid foundation for a favorable trial court ruling . . . because a win in the trial court is of little value if legal precedent would require the court of appeals to later undo that win.  Second, if a trial court judge is dead-set on making a ruling in favor of the opposing party, an appellate lawyer can take steps to ensure that the trial court’s error can actually serve as the basis for appellate reversal.  This is called “preservation of error.”  If error is not preserved, the court of appeals will likely find that the error was “waived” and, consequently, cannot serve as a basis for reversing the trial court’s erroneous ruling.  Third, having an appellate lawyer attend critical hearings (and even trial) makes clear to the trial court judge that unfavorable rulings will definitely be appealed, and this could certainly influence how the trial court judge ultimately rules.

The sooner that an appellate lawyer is consulted about a case, the better.  Although it would be ideal to consult with an appellate lawyer before a plaintiff files an original petition or a defendant files an answer, that isn’t always practical.  But having an initial consultation with an appellate lawyer late in a case is much better than never doing so at all.

Nothing is more frustrating to an appellate lawyer than receiving a call about a case in which the trial court judge made grave legal errors that would likely lead to appellate reversal, but not getting this call until after the deadlines to appeal have already passed.  So, always pay close attention to the deadline for filing a notice of appeal.  If there was no timely-filed motion for new trial (or other document specified by the rules), the notice of appeal deadline is generally thirty days after the trial court judge signed a final judgment.  If there was a timely-filed motion for new trial (or other document specified by the rules), the notice of appeal deadline is generally ninety days after the trial court judge signed a final judgment.

In some limited situations specified by statute, a notice of appeal must be filed even before there is a final judgment.  In those situations, the notice of appeal must be filed within twenty days of the order being appealed.  There are no documents (such as a motion for new trial) which can be filed to automatically extend this deadline.

Regardless of whether the deadline is twenty days, thirty days, or ninety days, there is a limited window to act if the deadline is missed.  Specifically, if the deadline is missed, a party has fifteen days after the deadline to file the notice of appeal along with a motion to extend the deadline.