E. Elizabeth Sweetser

Defending an Appeal

Here is the scenario. You win at the trial level and your adversary decides to file an appeal. What should you do?

You should not sit back and do nothing assuming that the Appellate Division will agree with the trial court. The right answer is find yourself an attorney experienced in appellate practice and defend your win with all your might.

Just as much as your adversary tries to convince the appellate judges that the trial court made material mistakes, it is your job to demonstrate in response that the trial judge followed and applied the proper legal principles.

The way an appeal works is that the person prosecuting or filing the appeal goes first. This person is known as the “appellant.” The appellant files a notice of appeal within the time allotted by the Rules of Court. The appellant must also order the transcript of the proceeding or the trial that resulted in the judgment or order upon which the appeal is based. Sometimes preparation of the transcript takes quite a bit of time if it was a lengthy trial.

When the transcript comes in from the court reporting service, usually a scheduling order will be imposed by the court with dates on which briefs are due. Each side usually has the opportunity for a 30- day extension of due dates for the briefs if needed.

The appellant files his or her brief first. Then the person opposing the appeal – known as the “respondent”- has the opportunity to file the opposition brief. Next, the appellant may file a short brief in reply to the opposition.

The legal arguments the parties make in these briefs must be based on issues raised below. That is the rule, generally, with no exceptions. No new facts or legal positions are allowed on appeal. The appeal is limited to the transcript in the trial court, the trial court’s order or judgment, the evidence introduced below and legal arguments in the appellate briefs, which must stem from issues raised by the parties in the trial court.

After all the briefs are filed, you will discuss with your attorney whether or not it would be productive to ask for oral argument in front of the appellate judges. If you don’t file a document called a request for oral argument, then your appeal will be heard on the papers. It’s a strategy decision between you and your lawyer about whether or not to ask for oral argument.

The Appellate Division decides how many judges are assigned to decide your case- two or three, depending on whether the appellate court thinks that they might need a tie-breaking vote, in which case a third judge is assigned.

How long it takes the Appellate Division to decide a case depends upon how busy they are and the complexity of the appeal. Usually, as a general rule, a decision can be expected anywhere from 6 to 8 months to one year.

The vast majority of judgments/order that are appealed are affirmed by the Appellate Division, meaning that the appellate judges uphold the validity of what the trial court did.

Learn more about: Appeals

E. Elizabeth Sweetser - New Jersey Attorney | PR&A Law

E. Elizabeth (Betsy) Sweetser

Commercial Law & Litigation, Appeals, Estates & Trusts Litigation, Employment & Labor

E. Elizabeth [Betsy] Sweetser is Of Counsel to the firm and works in the Commercial Law & Litigation, Estates & Trusts Litigation, Appeals and Employment & Labor departments.

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