After a Decision is Issued
File an Appeal
What is an appeal?
An appeal is when you ask a higher court to review a decision by a judge in a lower court. The higher court, which may be called a court of appeals, appellate court, or supreme court, for example, looks at the “record,” which includes the transcript, evidence, and documents from the trial court, and decides if the judge made any mistakes of law. You cannot introduce new evidence when you appeal your case to a higher court. The higher court only looks at what was said and done in the trial court.
Usually, you only have a short time to file an appeal after the judge issues the order or decision you want to appeal. The time limit may be different depending on what state you live in and what type of case you want to appeal. You may want to talk to a lawyer as soon as possible about the time limit in your state so that you do not lose your chance to appeal. You can find more information about getting a lawyer at Do I need a lawyer to appeal my case?
Do I need a lawyer to appeal my case?
It is possible to file an appeal on your own, but it is generally a complicated procedure with technical rules of law. It is hard to do without a lawyer. If you do decide to file an appeal on your own, you may want to talk to a lawyer for advice as you plan your strategy. For legal help, you can go to our Finding a Lawyer page, although you may have to call many places to find one that does appeals.
There is also an organization called DV LEAP, which takes civil appeal cases involving domestic violence or child abuse. This generally includes restraining orders, custody, divorce, or other civil cases. You can see their application form on the DV LEAP website. For other appeals organizations, please see our National Organizations - Appeals page.
Grounds for an appeal
What are "grounds" for an appeal?
A “ground” is a legal term that means the reason for the appeal. You cannot appeal a court decision simply because you are unhappy with the outcome; you must have a legal ground to file the appeal. If the judge in your case made a mistake or abused his/her discretion, then you might have grounds to file an appeal. We explain what this means in the section called What are the typical grounds for appeal that judges will consider?
How many grounds can I include in my appeal?
You can base the appeal on one or many grounds. If you are writing your own appeal, you will want to include as many grounds, or reasons, as you can think of with the hope that the appeals court will agree with at least one of the grounds that you include. If you fail to include a ground for appeal in your paperwork, then you may not be able to argue that ground later as a reason to reverse the trial court judge’s decision.
Appeals can be complicated and time consuming. If you have questions about whether or not you have grounds to appeal your case, you should talk to a lawyer. You can find more information at Do I need a lawyer to appeal my case?
What are the typical grounds for appeal that judges will consider?
Although it may vary by state or by the type of case that you are appealing, typically the grounds for an appeal are as follows:
The judge made an error of law
An error of law generally means that the judge in your case applied the wrong rule or “legal standard” to the facts of your case. This can occur if a trial court did not follow the law in your state that is supposed to apply in your case’s circumstances. For example, if your state has certain factors that must be considered when a judge decides what is in a child’s “best interest,” and a court decision does not use those factors or relies on different factors altogether, you may have grounds to appeal based on an error of law.
The facts of the case and/or the evidence introduced in the trial court do not support the judge’s decision
This can happen when the trial court judge makes a decision that seems completely out of line with what happened at trial. The legal terminology for this is that a “sound and substantial basis” does not exist to support the trial court judge’s decision. Generally, a judge’s ruling must be based on the facts that are proven at trial. If there is no factual basis, or good reason, for a judge’s ruling in your case, then an error may have occurred. For example, if a trial court judge said that s/he made a decision based on what is in the child’s “best interest” but at trial, all of the evidence showed that a different decision should have been made, you may have grounds to appeal.
The judge “abused his/her discretion”
Before and during a trial, a judge has discretion, or the power, to decide various things. Many decisions come up during a trial, like what evidence to admit, whether to approve a plea or settlement, and how to decide on motions/requests that are made. If the judge does something that is beyond the discretion that the court is allowed, and it somehow affects the judge’s ruling or decision in the case, then it could be grounds for an appeal. For example, when using the “best interests” factors, a judge has discretion to apply different “weight” to each factor, which means to view some factors as more important than other factors. Let’s say the judge in your case applies a lot of weight to the fact that the other party has four bedrooms in the home and you have three bedrooms while applying little or no weight to the fact that the other party has committed domestic violence and has a substance abuse problem, then the judge may have abused his/her discretion.
To prove abuse of discretion happened at your trial, generally you must show that the error is obvious or that it is clearly an abuse of discretion. In general, an appeals court will defer to, or go along with, a trial court judge’s decisions where discretion is allowed.
More information and other options
What other options are there?
Instead of appealing, in some cases, you may be able to request a modification of the court order. To request a modification of a court order, you will likely need to show that there has been a substantial change in circumstances that has happened since the order was issued. You will need to go back to the court where your order was issued and file modification forms. There will probably be a new hearing on the issue. You may also want to consult with an attorney to see if filing for a modification is appropriate under the circumstances of your case. If you are trying to modify a custody order, you can see general information about modifying a custody order at Changing a final custody order, or find state-specific information by selecting your state from the dropdown menu at same link.
Motions for Reconsideration
What is a motion for reconsideration?
A motion for reconsideration is a legal request that allows you to ask the judge to reconsider his/her ruling. Depending on your state’s laws, a motion for reconsideration may be an option in situations:
- where you are not satisfied with the judge’s order and believe the judge did not consider or properly examine certain evidence; or
- new evidence is available that you were not able to present before the judge made a decision.
When do I file a motion for reconsideration?
The deadline to file will be a certain period of time after the judge has issued the order that you would like to have reconsidered or after you are served with the order, often between 14 and 30 days. You may want to speak with a lawyer in your state about the time line to file a motion.
What will a judge consider in a motion for reconsideration?
The exact factors a judge will consider when deciding on whether to grant your motion for reconsideration will depend on your state’s laws. Generally, a judge will consider factors such as whether:
- there is new evidence that is significant to the legal issue and was not available when the case ended despite your best efforts to get that evidence;
- the final decision was made after an incorrect interpretation of the law or the law has changed since the judge made his/her final decision; and
- denying the motion for consideration will result in an obvious injustice.
These are general examples of what a judge may consider and may not be the specific factors in your state. You will want to contact a lawyer to find out what state laws apply to your situation.
Collecting a Judgment
If I win my case and get a money judgment, when will the defendant pay me?
Depending on the defendant’s financial situation, it can be very difficult to collect a judgment. Some people do not work or have assets and are not able to pay judgments. Other defendants may have the money but refuse to pay it out of spite or for other reasons. A judgment is really just a piece of paper that serves as judicial recognition that this person owes you this amount of money. Unfortunately, just because the judge awarded you a money judgment does not mean that the defendant is immediately going to pay the amount owed. That might happen, but more often, the person with the money judgment will have to take steps to enforce that judgment to force the defendant to pay.
If the defendant has money or other assets, you may want to talk to a lawyer in your state or territory to see what the process is in your jurisdiction. Here are some steps you may be able to take to try and collect (enforce) your judgment:
- In some states, one of the first steps you could take is to file the judgment with the clerk in your jurisdiction. A judgment that is on file will show up on the defendant’s record if s/he tries to buy or sell a house, take out a loan, buy a car, etc. Having a judgment on their record will encourage some people to pay off the judgment. However, not every state allows a person to file the judgment with the clerk.
- If you do not know where the defendant works or what assets s/he might have, some states allow you to serve a set of questions onto the defendant regarding his/her finances. This might be called an information subpoena, a written interrogatory, or something else. Once served, a defendant must complete the questions and provide information about his/her financial status. If s/he does not complete the questions, it might be possible to ask the court to punish him/her for failing to respond.
- You might be able to take additional steps to collect on the judgment. If you know where the defendant works or has a bank account, then it might be possible to garnish the defendant’s wages or take (seize) his/her assets. This process can be complicated depending on the rules in your state. In some states, you may be able to contact the sheriff, marshal, or the constable in your area to see if s/he might be able to assist you with this process. In other states, a judge has to specifically order wage garnishments or asset recovery before that method of collecting a judgment can be used.
However, sometimes none of these are possible because of the defendant’s poor financial situation. A person who cannot pay a judgment is referred to as “judgment-proof” because s/he does not have wages that can be garnished, a bank account or tax refund that can be accessed, or other ways to pay off a judgment. If the person you are thinking about suing is judgment-proof, you may want to think about whether or not the cost and stress of bringing a lawsuit will be worth it when you may not be able to collect on any judgment you might receive.