An appeal is the legal process to ask a higher court to review a decision by a judge in a lower court (trial court) because you believe the judge made a mistake. A litigant who files an appeal is called an appellant. A litigant against whom the appeal is filed is called an appellee. The higher court, which may be called a court of appeals, appellate court, or supreme court, looks at the “record,” which includes the transcript, evidence, and documents from the trial court, and decides if the judge made certain mistakes that must be corrected.

Keep in mind:

• You can only file an appeal after there has been a final ruling in your case, although there are some exceptions to this rule. In certain circumstances, you may file an “interlocutory appeal” to appeal the judge’s decision on an issue during an ongoing court case.
• Pursuing an appeal does not stop the court order that you are appealing from going into effect; the order goes into effect immediately and must be followed during the entire appeal process unless you file a Motion to Stay and a “stay” is granted. See What is a motion to stay? How does it affect the order I am appealing? for more information.
• 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.

When considering whether filing an appeal is the right option for you, you will want to consider the following things:

• Time: An appeal can take up to a year or more from start to finish.
• Expense: Appeals are very difficult to do without a lawyer and hiring an appellate attorney can be extremely expensive. (If you are a victim of domestic violence, you may be eligible for pro bono (free) appellate representation from DV LEAP). Aside from the cost of an attorney, there will be a filing fee that is often between $100-$250. Also, you will probably need to pay for the written transcripts from the final trial in the lower court, which can be quite costly. Some states will waive the filing fees and transcript fees if you are low income, but many states do not offer this.
• Outcome: Even if you “win” on appeal, which is very difficult, the most likely outcome will be another trial, called a “remand.” This is where the appellate court instructs the trial court judge to fix the mistakes that the appellate court decided the trial court judge made. You may have to re-litigate one part or all of the trial again in the lower court and it does not necessarily mean that you will win the case – the trial court judge could still rule in favor of the other party. There is also a good chance you will be back in front of the same trial judge whose order you appealed.
• Emotional toll and safety concerns: If the other party is your abusive partner, it’s important to know that the appeals process is very long, which will drag out the conflict between you and the abuser and will create an extended time of uncertainty in your life. In addition, filing an appeal may anger the abuser, which could lead to additional abuse.

The good news, however, is that an appeal is decided only based on the written evidence and exhibits filed in court. Therefore, you will not have to testify or go through another trial at the appellate court. In addition, there is the potential that the court’s ruling on your appeal will change or strengthen the law to help others in similar situations.

You cannot appeal a court’s decision simply because you are unhappy with the outcome; the trial judge must have made a mistake that serves as a “ground” for your appeal. (A “ground” is a legal term that means a cause or basis.) We explain the types of mistakes that might be grounds to file an appeal in the section called What are the typical “grounds for appeal” that judges will consider? Usually, you must also have pointed out that mistake to the trial judge at the time it was made by objecting in court during the trial. This is called “preserving your record.” You can read more about how objections can preserve the record for appeal in What steps do I need to take during the trial to set myself up for possibly being able to appeal if I lose?

Usually, you only have a short amount of time to file an appeal after the judge issues the order or decision that you want to appeal. To start the appeals process, you must file a Notice of Appeal within the time limit required by your state. The time limit will depend on what state you live in and what type of case you want to appeal and may be extended if you file a post-trial motion, such as a Motion for Reconsideration. In many states, but not all states, a Notice of Appeal must be filed within 30 days from the date of the final trial order. After you file the Notice of Appeal, there are other documents and/or further steps that will be required, sometimes called “perfecting the appeal,” and often these further steps will have deadlines. Examples of those additional steps are explained in The typical steps in the appeals process. If at all possible, you should consult with an attorney in your state about what these steps and deadlines are. If you are not able to talk to an attorney, many states have excellent appellate guides for unrepresented litigants on their judiciary websites that provide this information.

When you file to appeal a judge’s order, the act of filing the appeal does not stop the court order that you are appealing from going into effect. The only way that the order would not go into effect immediately is to file a post-trial motion called a Motion to Stay and for the judge to grant a “stay,” which prevents the original order from taking effect while the appeal is going on.

States may each have their own standards for when a stay will be granted but, generally, it is difficult to obtain a stay. For example, in Washington, D.C., a Motion to Stay must show: 1. that your appeal is likely to succeed; 2. that you will suffer irreparable harm if the stay is not granted and the order is allowed to go into effect; 3. that the other party will not suffer undue harm or prejudice if the stay is granted; and 4. that the public interest weighs in favor of granting the stay.¹

In many states, you must file this Motion to Stay first with the trial court and, if it is denied, then you would re-file it in the appellate court. It is important to speak with an attorney from your state to find out the specific process, timeline, and criteria for filing a Motion to Stay the trial court’s order.

¹  Barry v. Washington Post Co., 529 A.2d 319 (D.C.App. 1987)

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.

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.

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.

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:

1. The appellant has 30 days from the triggering event to file the “opening brief.”
2. The appellee has 30 days from the time the opening brief is filed to file his/her brief.
3. 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.

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.)

Instead of appealing, in some cases, you may be able to request a change (modification) of the court order by filing a Motion to Amend or Motion to Modify. 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.