Step 1: File the Notice of Appeal.
The Notice of Appeal is usually a simple form that can often be found on the state’s judiciary website. It typically requires basic information, such as the name of the parties to the appeal, the court and case number of the order being appealed, and in some cases, a summary of the grounds for appeal. (Here is an example from Wisconsin.) Here are some key points to remember related to the Notice of Appeal:
- When: Make sure to file within your state’s deadline. If you aren’t sure of the deadline, call your local legal services or consult with a private attorney to ask.
- Where: Often, the Notice of Appeal must be filed in both the trial court that issued the decision you are appealing and in the appeals court. Sometimes the form itself will state where it must be filed.
- Who: Before you file the Notice of Appeal, you must be sure to give (“serve”) your opposing party or his/her lawyer a copy of the Notice of Appeal. Many states will require that you “certify” that you have served the opposing party, for example, by signing a statement at the bottom of the Notice of Appeal.
Step 2: Pay the filing fee.
Typically, there is a fee for filing an appeal that must be paid to the clerk’s office in the appeals court. These fees can range from $100-$250. If you are unable to afford the filing fee, you may be eligible for a waiver based on your income. Check with the appeals court clerk’s office or the court’s website to see whether you can apply for a fee waiver.
Step 3: Determine if/when additional information must be provided to the appeals court as part of opening your case.
In some states, appellants must file a separate document with administrative information at the same time, or shortly after, filing a Notice of Appeal. For example, in Maryland you must file a “Civil Appeal Information Report” within 10 days of filing your Notice of Appeal.
Step 4: Order the trial transcripts.
Typically, the appeals court will need to review the trial transcripts, which are the written record of the trial. It is the appellant’s responsibility to order and pay for the transcripts. Usually transcripts are ordered through the trial court reporter. Check with the trial court clerk’s office to determine the process for your state. Here are some key points to keep in mind:
- Transcripts are expensive. They are typically charged based on the number of pages, and therefore the cost is determined by the length of the trial. Check to see if your state offer’s transcript fee waivers based on income eligibility. If so, you will need to complete the required forms to request the waiver, which often includes a financial statement that proves your income.
- Check with the trial court and/or the appellate court clerk about any deadlines related to the transcripts. Often there is a deadline for when the transcripts must be requested (and paid for), usually based on the date the Notice of Appeal is filed. For example, you may have to request the transcripts within 14 days of filing the Notice of Appeal. If your state has a deadline for when the transcripts must be prepared and they will not be ready in time, you will need to file a motion in the appeals court asking for an extension of the deadline and stating why you will not have the transcripts on time – for example, if the court reporter can’t complete the transcripts by the deadline.
- Check with the appellate court as to whether you need to file any paperwork confirming that you have ordered the transcripts.
- Check with the appellate court to ask if you must provide a copy of the transcript to the appellee. Typically, the trial court reporter (“court stenographer”) or whoever is preparing the transcripts will send the original directly to the trial court to be included in the record. However, often the appellant will be responsible for sending a copy of the transcript to the appellee.
Step 5: Confirm that the record has been transferred to the appellate court.
The trial court clerk will typically put together the “record,” usually after the transcripts are completed, and send it to the appeals court. The record includes all of the documents connected to your case, including the transcripts. While it is usually the lower court’s responsibility to ensure that the record is transferred, it is a good idea for you to contact the appellate court clerk’s office to check on the status of the transfer. In many states, the transfer of the record from the lower court to the appellate court is what triggers the start of the “briefing schedule,” explained below in Step 7.
Step 6: Determine what must be filed with your brief.
In most states, the appellant’s brief must include select portions of the record that support your position to make it easier for the appeals court to determine whether or not it agrees with your arguments. It could be included as attachments (“exhibits”) to the brief itself or you may have to put it in a separate document that gets filed along with the brief. In Maryland, for example, the brief must be accompanied by a “record extract,” which includes photocopies of transcript excerpts and exhibits that support your arguments. In Massachusetts, this is called a “record appendix,” and the brief must also include an attachment (“addendum”) with copies of the order being appealed and other relevant documents. Most appellate court websites have guides that will help you identify the particular requirements in your state. For example, the website for Maryland’s Court of Special Appeals includes a guide for self-represented litigants in Maryland.
Step 7: Determine when your brief must be filed.
You should receive a written notice giving you the deadlines for your briefs and the other party’s briefs, often called a briefing schedule. If you did not, contact the appellate court clerk to ask for one. Different states have different timelines for when appellate briefs are due, as well as different events that would start (trigger) the timing. In many states, the transfer of the record to the appellate court starts the timing. Typically, once the timing is triggered, the appellate court will send the parties a briefing schedule laying out the deadlines for each brief.
Many states, although not all, use the following schedule:
- The appellant has 30 days from the triggering event to file the “opening brief.”
- The appellee has 30 days from the time the opening brief is filed to file his/her brief.
- The appellant has 15 days from the date the appellee’s brief is filed to file a reply brief.
The appellate court’s rules, which are usually available on the court’s website, should lay out the timing requirements of the briefing schedule for your state. Many appellate courts have helpful guides that will direct self-represented litigants to the correct rules.
Step 8: Check the length and formatting requirements for the brief.
Most appellate courts have strict rules about how long each type of brief can be and will have either a page limit or word limit. You should also check if there are any specific formatting requirements, such as font type and size. If you are unable to find these rules on the appellate court’s website, call the clerk.
Step 9: Write your brief.
As explained in Step 7 and Step 8, every state has its own specific requirements for the appellate brief. It is extremely important to consult the appellate court’s website for the relevant rules, sample briefs, and any other guidance to make sure that your brief follows all of the requirements and won’t be rejected. In addition to the specific requirements set forth in the appellate court’s rules, here are some other tips to keep in mind:
- Generally, an appellant’s first brief (“opening brief”) will require:
- a description or list of the errors you believe the trial court made;
- a statement of the facts of the case that would be necessary for the appellate court judges to understand your arguments. The facts must have been presented during trial or at some point during the litigation; they cannot reference new information. If possible, there should be a reference to the specific parts of the record that establish the facts, which usually would be written in parenthesis after each fact. For example, “The Appellee admitted to placing a GPS on the Appellant’s car (transcript p. 74, lines 23-24);”
- your arguments explaining why and how the trial court made each error your appeal is based on, supported by citations to relevant case law;
- a concluding request that the appellate court overturn (“vacate”) the trial court’s order.
- An appellee’s brief generally will require:
- a counter-statement of facts that would be necessary for the court to understand the appellee’s arguments as to why the trial court’s decision was correct. The facts must be supported by references to the record as shown above;
- the appellee’s arguments explaining how each of the appellant’s arguments is incorrect and why the trial court’s decision is correct, supported by citations to the relevant case law;
- a concluding request that the appellate court agree with (“affirm”) the trial court’s order.
- An appellant’s reply brief, if the appellant chooses to file one, will require:
- any additional facts necessary to address the appellee’s arguments;
- your arguments responding to the appellee’s arguments but without repeating arguments from your opening brief, if possible.
Some appellate courts’ websites provide sample appellate briefs, which can be very helpful if you are attempting to write a brief on your own. If you are attempting to find case law on your own, there is a public site called Google Scholar, which allows someone to do case law by searching for phrases that might come up in other cases. There may be state-specific resources as well, such as The People’s Law Library of Maryland. (WomensLaw is not affiliated with either of these websites and cannot vouch for the information you may find on them.)