APPEALS – Frequently Asked Questions
The following is general information, not legal advice. It applies primarily to Florida appeals, but not necessarily to appeals in other states.
What is an appeal?
How soon after the final judgment must I start the appeal process?
What are my chances of getting my case reversed on appeal?
How long does the appeal process take?
How much money will an appeal cost me?
Can an appeal be done on a contingency basis – where the attorney gets no fee up front but is instead compensated with a portion of the damages award if he wins the case?
What happens in an appeal?
I was the winning party in the lower court. Do I need an appellate attorney?
Is it possible for both sides to appeal a lower court’s final judgment?
Is it possible to appeal a lower court’s decision before that court has reached a final judgment?
What if I lose in the appellate court?
If I lose my first appeal, is there an even higher appellate court to which I can appeal?
After a lower court, such as a trial court or administrative court, has reached a final judgment in a case, a dissatisfied party may “appeal” the lower court’s decision to a higher court, called an “appellate court.” An appeal is a request for the appellate court to review and change the decision of the lower court.
In Florida state courts, you have 30 days after the final judgment in a civil or criminal case for you or your attorney to file a notice of appeal with the lower court. (Florida Rules of Appellate Procedure 9.110(b), 9.140(a)). In Florida federal courts, you have 30 days for a civil appeal and 14 days for a criminal appeal. (Federal Rules of Appellate Procedure 4(a)(1)(A), 4(b)(1)(A)). This is why you must act quickly to get appellate representation after you have received a final judgment against you. It is often a good idea to be shopping for an appellate attorney while your case is still ongoing in the lower court. If you have missed the appeal deadline in a criminal case, it is sometimes possible (but not guaranteed) that the appellate court may still be persuaded to accept your appeal.
Getting a case, either civil or criminal, reversed on appeal may be difficult because the appellate court begins with the presumption that the lower court’s judgment was correct. Nevertheless, a substantial number of cases are reversed on appeal. You have a better chance of prevailing if you have an experienced appellate attorney working for you.
Therefore, if your attorney thinks that you have a strong issue for appeal, it may well be worthwhile to take the case to an appellate court. Your likelihood of getting a reversal on appeal depends on the specific facts and law applicable to your case. We offer a free consultation to help you determine if you have a reasonable chance of winning on appeal. Contact us at firstname.lastname@example.org to schedule your consultation.
An appeal is not usually a quick process because appellate courts prefer to take their time to ensure that they reach the right decision. An appeal may take a year or more. Some appeals take two years or more, but that is not common.
That depends on such factors as the length of your trial and the number and complexity of the legal issues that can reasonably be raised in your appeal. This is something we can discuss as part of your free initial consultation. We can also work out an hourly rate or a flat rate, depending on which is best for you. You will also have to pay for certain costs, such as the initial filing fee and transcript costs. There are certain situations in civil cases in which the opposing party may be required to pay all or part of your attorney’s fees for you. You can discuss this possibility with us during your consultation. Contact us at email@example.com to schedule an appointment for a free consultation.
Under Florida law, contingency fees in a criminal case are not allowed. Contingency fees are permissible, however, in civil appeals. If you are involved in a civil case, we can discuss this possibility during your free consultation.
An appeal involves written documents, called “briefs,” filed by the attorneys for the parties, and often also includes oral argument by the attorneys before a panel of judges. The party who seeks review of the lower court decision by an appellate court, is called the “appellant.” The appellant’s lawyer files an initial brief with the appellate court. This initial brief explains to the judges the appellant’s interpretation of the facts and the law that apply to the case and the reasons why the appellant believes that the lower court’s judgment was mistaken. The lawyer for the party who won in the lower court, called the “appellee,” then files an answer brief explaining why the appellee believes that the lower court was correct in its final judgment. The appellant then has the option of filing a reply brief in response to the appellee’s arguments. If the appellate court permits, the attorneys may participate in oral argument before a panel of judges about the merits of their cases. Oftentimes, however, the appellate court makes a decision based entirely on the written briefs without holding oral argument.
The facts cited in the attorneys’ legal briefs are based on the “record on appeal,” which consists of documents filed in the case and transcripts of the trial and other court hearings. The appeal is entirely a review of whether the trial court made the correct legal decisions based on the information it had at the time. Appeal attorneys may not introduce new evidence or bring in witnesses to testify. At the oral argument, only the attorneys may argue; parties and witnesses may be present but are not allowed to testify or argue the appeal to the judges (unless you are in the unfortunate position of having to represent yourself in an appeal).
An appellate court decision is usually not made by one judge alone, but by a panel of at least three judges. The appellate court may “affirm” the lower court’s judgment, which means that the appellate court finds that the lower court reached the right conclusion in the case and that its judgment still stands. Or the appellate court may “reverse” the lower court’s judgment because the lower court made legal errors that prevented the appellant from receiving a fair trial. When the appellate court reverses a lower court, it “remands” (sends back) the case to the lower court, either for a new trial or with other instructions that are appropriate to the case.
If you were the defendant in a criminal trial and were acquitted by a jury, then the government cannot try you again for that crime due to the U.S. Constitution’s prohibition against double jeopardy. Therefore, the prosecution cannot appeal your acquittal and you do not need an appellate lawyer for the criminal charge(s) for which you were acquitted.
If, however, you were the winning party (whether plaintiff or defendant) in a civil case, then the losing party may decide to appeal the case. You will then need to answer the losing party’s arguments in the appellate court to prevent your win in the lower court from being overturned. It is highly recommended that the appellee, as well as the appellant, be represented by an experienced appellate attorney. Contact us at firstname.lastname@example.org to schedule your appointment for a free consultation.
Yes. In that situation, the second appeal filed is called a “cross-appeal.”
For example, in a criminal case in which the defendant is found guilty at trial, the defendant may appeal his conviction while the prosecution cross-appeals a sentence that it considers too lenient.
Likewise, in a civil case in which a defendant is found liable for damages to a plaintiff, the defendant may appeal the verdict of liability while the plaintiff cross-appeals an award of damages that it considers too small.
Yes, but only in rare cases. This kind of appeal is called an “interlocutory” appeal. Appellate courts have narrow, specific rules about what kinds of interlocutory appeals they may accept. You should consult with us or your trial attorney if you have questions about a possible interlocutory appeal. Contact us at email@example.com to schedule your appointment for a free consultation.
If you lose in the appellate court, there are certain motions that your appellate attorney may file, if appropriate, to ask the appellate court to re-evaluate its decision – particularly if the appellate court appears to have misapprehended some point of fact or law. These types of motions must be filed within 15 days of the appellate court’s issuance of its written opinion. You should ask your appellate attorney about the appropriateness of post-appeal motions in your case.
In Florida, a losing party in a lower court has a right to one appeal in an appellate court. If that fails, there may be recourse to an even higher court (such as the Florida Supreme Court or the U.S. Supreme Court), but these courts have wide discretion about which cases they will accept and there are very few cases that they are required to take. These courts typically agree to hear a case only when it involves an unusually important legal issue, or when two or more lower appellate courts have interpreted a law differently. If you should lose on your first appeal, we can advise you about whether it is worthwhile to try to take your case to a higher court.
Contact us at firstname.lastname@example.org to schedule your appointment for a free consultation.
[Updated June 26, 2016]