Breaking Down the Appellate Process in Michigan

Attempting an appeal generally means you are trying to overturn a ruling made my a judge or jury. As such, the process for an appeal is different than a typical family law matter. The process can be outlined in the 4 steps listed below.

Step 1: Hire an Appellate Attorney as Soon as Possible.

We get it; you want to ignore the bad result for a while. Your trial attorney may still be working on various motions to contain the damage or is still working on the drafting a final judgment. However, when you know the result is bad, you need to start the appeal’s process immediately. With that in mind, the first step in the appeal’s process is to have an appellate attorney evaluate your divorce decree or ruling.

Keep in mind that not every licensed attorney is an appellate attorney. An experienced appellate attorney knows how to spot the issues and determine if you have grounds for an appeal. An experienced appellate attorney will review whether your trial attorney “preserved” issues for appeal. That is the tricky part of appeal: just because you feel the result was unfair does not mean that the higher court will set it aside. Your experienced appellate attorney knows how to review the record that trial attorney made in the lower court, ask the right questions, and present your case to the Court of Appeals to allow for a different result.

How to Choose an Appellate Attorney

There are important considerations when choosing an appellate attorney. You should meet and discus the option of an appeal as soon as possible with an experienced appellate attorney. Next, consider that a trial attorney and appellate attorney have different duties. A divorce litigation attorney needs to be skilled advocate in the court room. An appellate attorney needs to be an excellent researcher and writer who can persuasively present your case to the court.

Step 2: File on Time

An appeal at the Court of Appeals is started with the filing of a Notice to Appeal. The form looks pretty simple. However, this notice starts the appeals process and the timeline for additional important deadlines. Your appellate attorney undoubtedly will want to accomplish a lot of work behind the scenes to prepare for the actual appellate brief. Your appellate attorney may want to have some motions filed in the trial court. For example, a motion to stay the proceedings would allow for (part of) the judgment to not take effect immediately while the appeal is pending. If you want to successfully appeal a lower court’s decision, filing the Notice to Appeal too earlier will complicate your case and may increase your overall cost.

Step 3: The Brief

Your appellate attorney will spend a lot of time during the appeal’s process obtaining and reviewing the transcripts of the hearings. The Court of Appeals’ judges will only review the testimony that was provided to the trial court, the exhibits that were admitted into evidence or the reasons why they were rejected, and they will determine if the judge’s ruling followed Michigan law. This means that if you had important evidence, but your attorney did not present it to the trial judge, you cannot present it to the Court of Appeals. Your trial attorney may have failed to “preserve the evidence.”

Unlike the trial court where the judge in general wants to give spouses’ a chance to present their case – even if they do not know the court rules, in the Court of Appeals the rules are very strict. There are very strict rules how this brief must be written.

This brief is your only chance to convince the Court of Appeals judges why your case should be reversed. Besides the very strict rules that should not be broken, your brief also needs to be persuasive, as short as possible while still convincing the appellate judges that the trial court made a mistake, and the ruling must be reversed.

Step 4: Oral Argument and the  Appeal Timeline

Unfortunately, the appeals timeline is long. After a brief, a response brief and a reply brief and sometimes various motions may also take place. Thus, there’s a good chance you will find yourself waiting. You should also expect to wait several months to have your case heard. Appeals involving a custody dispute will receive preference and be heard earlier. Even so, the wait is still significant

Not every appeal will receive a hearing. Your appellate attorney will need to have requested a hearing. The appellate court may ask complicated questions how certain precedent caselaw applies to your case. Your attorney should be well prepared and know Michigan law very well when attending such a hearing.

After the hearing is completed, you once again must wait for the appellate court’s opinion. Clients sometimes find the opinion and order difficult to understand and sometimes disappointing. Sometimes the opinion is lengthy describing how previous caselaw applies to your case; sometimes the opinion is very short; sometimes only two or three sentences denying the appeal for no reason.

Of course, a good appellate attorney will continue to keep you informed along the way and will give you their best estimates as to when the next steps will take place. If you are considering filing a divorce or family law appeal, we encourage you to contact our law firm to help get you started.