In addition to my trial practice, I also do appeals for Family Court cases. With over a thousand Family Court trials, and numerous Family Court appeals under my belt, I am well versed in all of the legal issues, defenses, and grounds for successful appeals on all Family Court cases.
What is an appeal?
Some litigants have a fundamental misconception about their right to appeal the orders of a trial court. In New York, although you have a legal right to appeal any final order of the court, you still need a legal basis to appeal. Your right to appeal does not mean that you have an automatic right to have the trial “done over”.
In some cases, if you win your appeal, the appellate division may send the case back to have the Family Court do the trial over, and in some cases the appeal court may make its own decision and can overrule the decision and orders of the trial court. However in order to get the trial court to do either of these things, you have to show that the trial court made one or more serious errors, or alternatively that the decision of the court was “against the weight of evidence”.
Reversible error and harmless error
If the Family Court made a serious error or a series of serious errors, the appellate court may find that the trial court committed “reversible error”. This means that the appellate court has found that the error or errors were so bad or so fundamental that it cannot trust the trial court’s decision, so that the order of the Family Court has to be reversed.
Unfortunately, it is not uncommon for an appellate court to find that the Family Court made one or more errors, but that overall the errors were not serious enough for the appeal court to throw out the decision of the lower court. This is known as the “harmless error” doctrine.
The New York appellate process
In New York State you start the appeal process by filing a document, called a “notice of appeal” with the trial court, along with proof that a copy of the notice and a copy of the court order that you are appealing from have been served on the other side. This has to be done either within 30 days or in some circumstances 35 days.
Once the notice of appeal has been filed the person appealing ordinarily has six months to “perfect” the appeal. Perfecting the appeal means obtaining the trial transcripts and exhibits, serving copies of them on the other side, writing and printing a brief, serving it on the other side, and filing the brief with the Appellate Division.
The above paragraph is an abbreviated explanation, and the details of exactly how this needs to be done depends on which department of the Appellate Division has jurisdiction. In New York State the Appellate Division, first department is in charge of appeals for Manhattan and the Bronx, the Appellate Division, second department is in charge of Brooklyn, Queens, Staten Island, and Long Island, and the Appellate Divisions for the Third and Fourth Departments are in charge of the upstate counties.
Appeals have a lot of technical requirements, including rules as to the types of fonts you have to use, the maximum number of pages, the type of paper to be used, along with numerous technical differences between the various departments, making it quite difficult for a pro se litigant to successfully perfect an appeal within the time frames, if at all.
Methods of perfection of an appellate case
There are several ways to assemble the “record” and present the record to the appellate courts. The “record” consists of the trial transcripts, the trial exhibits, and any Motions that were made on the case. Most attorneys, law firms, and many pro se litigants use specialized companies called “Appellate Printers” to prepare print and oftentimes serve the record on the other attorneys and file them with the court.
The three methods that are used are the “full record”, “appendix method”, and the “original record”. Fortunately, a family court appeal can be filed using the original record method, which is the least costly of the three methods.
Appeals require multiple copies of the briefs and the record, however when using the original record method the person appealing usually only has to subpoena the file from the trial court to be sent to the Aappellate Divison instead of paying an appellate printer to make multiple copies, bind them into books, and serve them on the other side and the appellate court.
Writing the brief
Writing a good appellate brief is a combination of art and science. The appellate lawyer who is challenging the Family Court order will usually focus on the most important issue or issues. The appellate lawyer must obviously know the law very well in order to spot all of the possible issues, but must also be able to decide what to put in the brief and what to leave out of the brief.
Most experienced appellate lawyers know that it is usually not a good idea to put every single issue in the brief, as this strategy risks taking away from the power of the most important issues.
It is very important that the brief not only address the major legal issues but also that it be well written, well organized, and ideally compelling. It is a sign of good lawyering when another experienced lawyer who knows nothing about the is totally convinced after reading the brief by the arguments made with no lingering doubts or questions.
The most common motions that are made on an appellate case include: