You Can Appeal but The Appeals Process is Not Like the Trial Process

An Overview of an Appeal Process

An appeal is defined as an official request made by someone who has lost in a trial court asking for review from a new set of judges at the court of review. An appellate court will review the documents filed in the original trial and issue its own ruling based on what it finds, assuming it has been sufficiently apprised of the legal reasoning why the trial court erred. It’s important to note that this isn’t a new trial; instead, it is simply an opportunity for your case to be re-examined on the basis of case precedents and legal arguments.

The Benefits of Filing an Appeal

If an appeal is successful, then one or more portions of the lower court’s decision will be overturned and/or modified in favor of the appellant (the party bringing forth the appeal). Once all arguments, which rely on case precedents, the evidence submitted in the original trial and the testimony from the original hearing, are reviewed and considered, a final decision will then be made by either upholding or reversing some portion(s) of the original ruling based on applicable law and facts presented at trial or during subsequent appellate proceedings

Elements Needed for an Appeal

If you decide to file an appeal, there are certain elements that must be in place—namely, proper paperwork and sufficient grounds upon which to base your challenge. You must also have legitimate issues with either the law or procedure used in reaching the verdict or judgment against you. Your attorney can help determine whether any of these elements exist and whether filing an appeal would be beneficial or not.

What Is Appealed?

The appeals process is limited: only issues that have been raised during the course of litigation can be appealed. For example, if one spouse was awarded more maintenance than is supported by the law, the paying spouse may argue that this amount should be lowered on appeal. However, if neither spouse brought up maintenance during their proceedings, it cannot be raised as an issue on appeal. In addition, appeals are limited by time restrictions – appeals must normally be filed within 30 days after judgment has been entered in order to proceed with an appeal. Only final orders can be appealed.

How Long Does an Appeal take?

The appellate process in some circumstances is pretty quick, taking 6-8 months for cases involving parenting allocations (custody) and a few other topics. In other circumstances, it can take years. It takes the clerk some time to prepare the court file, the court reporters time to prepare transcripts, and the attorney to prepare the legal briefs. If the case is scheduled for argument, it could be several months after the briefs are filed. Then the appellate court makes its decision, which can take even more time. All told, unless it is a case that is mandatorily speeded up by the Appellate Court, it takes over a year from the time a case is appealed until a decision is rendered.

The Costs of An Appeal

The biggest factor of why most judgments and rulings are not appealed is the cost. In Illinois, if you appeal a case, you will first have to pay for the cost of the preparation of the court’s file into the format needed by the Appellate Court, which starts at $50 and quickly grows from there. You also need to pay for the cost of preparing the transcripts from the hearings, which is $3.75-5.00 per page. Each half hour of testimony is about 40 pages, so transcripts become quickly expensive. There is also a filing fee, which is $50 plus a service charge. Then there is the cost of the attorney. Appeals are incredibly complex and not many attorneys handle them. Those that do, at least in Illinois, charge $300 or more per hour. Some attorneys do them on a flat fee basis. It is not uncommon for an appeal to cost over $20,000 per person.

What Results from an Appeal?

The Appellate Court, in Illinois, has a choice to uphold the trial court’s order or send it back to the trial court with directions on how to resolve the issue. Very rarely does the Appellate Court actually enter orders that resolve the issue that was appealed. For example, if someone appeals a child support order, the Appellate Court may send the case back to the trial court and tell the trial court to consider various factors. With parenting allocations, the Appellate Court might send the case back with instructions to have the children speak with the Judge in chambers. Its very, very rare to see the Appeals Courts enter an order that does anything else. In other words, if you win, you simply win the right to go back to the trial court and try the case again.

Does the Appellate Court Actually Hear Testimony or Consider Documents That Were Not Part of the Original Trial?

The short answer is no. The Appellate Court can only look at the evidence and testimony that was part of the trial unless it was excluded improperly and the issue was preserved. In other words, the Appellate Court is a Court with the power to review what exists, and has no power to hear new information. In fact, when I argue to the Appeals Court, I do not have my client come with me usually, so that I can focus on making the arguments.

Appeals provide divorcing spouses with another chance at obtaining justice after suffering a loss in their initial court case, but is an option rarely taken for the reasons I highlighted above. If you believe that your original court decision was unfair or unjustified due to legal errors or other issues, then filing an appeal may be the best way forward for you, but is not something you should attempt on your own. However, keep in mind that appeals require proper paperwork and sufficient grounds upon which to base your challenge so speak with your attorney about whether filing an appeal would be beneficial for you before making any decisions about pursuing one. If you have recently lost at trial, you can reach out to my office to see if I can help you appeal. I have handled quite a few in my career and am willing to discuss if I can help you. You can check my sister website, akbradleylaw.com, for my appellate resume. Reach out to my office to see if I can help you by calling me or filling in my form.