I am asked this and similar questions a lot. So I thought I’d provide an answer here. I hope it’s helpful to you.
An appeal is a legal action or remedy that begins after a judgment is rendered in a trial court (like the superior court, the district court, the probate and family court, etc.). A direct appeal is the primary form of post-judgment remedy (or post-conviction remedy, in the criminal context) available to a litigant. Appeals are generally heard in the Appeals Court in Boston, though some cases are heard by the Supreme Judicial Court as well. Both of these courts sit in the John Adams Courthouse in Boston.
Strictly speaking, a direct appeal to the Appeals Court is permitted when a case goes to trial, either before a judge or a jury. In the case of a guilty plea in a criminal matter, there is no right to appeal. Instead, someone who pleaded guilty (or pleaded to something less that straight guilty, such as a CWOF) can pursue a post-conviction remedy in the same trial court itself under Massachusetts Rules of Criminal Procedure 30. If the trial judge denies the motion, however, you can collaterally appeal this to the Appeals Court.
The most difficult aspect of appeals for clients, however, is the long period of time it generally takes to get through the appellate process. It’s a big help to a client to be informed of the steps that must be taken to pursue an appeal. It makes the wait less frustrating. So, here they are.
1. The Notice of Appeal
The process starts after judgment by filing a notice of appeal in the court that rendered the judgment. Generally, a person has 30 days from the judgment to file this notice as a matter of right. Once filed, the right to appeal is now preserved.
For example, if you get convicted of drunk driving (OUI in Massachusetts), then you would file the notice of appeal in the court where the conviction happened within the time limits.
A. WHAT HAPPENS IF THE 30 DAYS IS MISSED?
- If the 30 day deadline to file the notice of appeal is missed, but you are less than 60 days out from the judgment, then you can file the notice of appeal in the trial court with a motion to late-file the notice of appeal. You have to show good cause for why the court should allow the late filing, which boils down to providing a good explanation for why the 30 day deadline was missed.
- If, however, you are passed 60 days from judgment, then you have to file the notice of appeal with the Appeals Court in Boston, along with a motion to late-file the notice of appeal which, again, must provide good cause shown for why the deadline was missed.
- If you are past one year from the judgment without having filed a notice of appeal, however, then no court in Massachusetts has jurisdiction to hear the appeal and your appellate rights are permanently lost.
- So, it is crucial to preserve the right of appeal right off the bat. You can always decide later not to pursue the appeal after you have filed the notice of appeal, but getting the notice in on time is vitally important.
2. Building the Trial Record
Once the notice of appeal is filed, then the record of the case must be assembled in the clerk’s office of the trial court. Once assembled, the record is then sent to the Appeals Court and the attorneys in the case (unless they already have it).
What is the record in a case? It is basically 3 things: 1) the docket sheet; 2) the numbered papers filed in the case which are listed on the docket sheet (such as motions, judicial orders, etc.); and 3) the all-important trial transcript.
Why is the record important? The record of a case tells the appellate lawyers and the appellate judges (who were not with you when the case was at trial) what happened at trial. The record is the evidentiary basis upon which your appellate lawyer (me) would find issues to appeal in your case as well.
Generally, the Appeals Court will only consider matters that are on the record before it. No outside information (such as an affidavit from a potential witness who did not actually come to court to testify at trial) will be considered on direct appeal by the Appeals Court.
The major exception to this is if you are doing a collateral appeal. That is, you filed a motion for new trial in the trial court and lost. Now you can appeal this loss to the Appeals Court and, in doing so, get all of the new information and affidavits that were brought to the trial court in your motion to the Appeals Court. This is now the record of the case on appeal.
Because only matters on the record will be reviewed by the Appeals Court, however, any and all issues of legal merit raised by you on appeal must be based on that record as well.
Often, it takes a long time to get the record assembled. The major reason for this is that the transcripts of the trial (and any important pre-trial events) must be culled from an audio recording of the trial and made into a written transcription by a professional transcriber. This can take a while.
3. Issues to Brief on Appeal
By the time the record is actually assembled, the appellate attorney might already have a sense of one or more issues in the case (not always, however). The papers filed in the case can be helpful here, the trial attorney’s point of view can be helpful, and the client (you) can be helpful as well.
Once the transcript is in your appellate lawyer’s hands, however, a full investigation of all possible issues of legal merit can begin.
What does this involve? The best analogy I can come up with in doing this kind of work is, unpleasantly, that of a medical examiner doing an autopsy on a body. In essence, an appellate lawyer is doing an autopsy on a trial in order to investigate what happened here. What was the “cause of death” of your legal interests in the case? Why did you to lose? This entails an examination of all aspects of the case to find legal issues that will help you. Sometimes in civil appeals, however, the investigation is narrower because the litigants already know what they want to appeal. But, in a criminal appeal, the investigation must be thorough.
Once we know what issues exist in the case, the question now is what can be done about it. Like Dr. Frankenstein (sticking with the dead body thing above), the appellate lawyer now attempts to bring the case back to life or, more narrowly, attempts to bring the outcome you wanted at trial, but failed to get, back to life.
A. THE “AUTOPSY” STAGE
This is where every aspect of the trial is examined closely in order to find issues of legal merit that can be raised before the Appeals Court. It starts with the early stages of the case, such as important pre-trial events. This often includes hearings on motions, such as a motion to dismiss, a motion to suppress, a motion to sever a trial or a motion for third-party records.
A major issue here is often whether the court made the right decision during a hearing. If not, was there an abuse of judicial discretion? Were there clearly erroneous findings of fact that led to faulty conclusions of law?
Events right before trial begins must also be examined. This includes motions in limine that the court decides on right before trial begins. These are often thorny evidentiary matters that can have a large impact on how the trial goes. The major issue here, of course, is whether the judge’s decision on such a motion was correct. Can it be argued that the judge wrongly let in evidence when he should not have or, conversely, whether the judge wrongly excluded evidence that he should have allowed in?
The empanelment of the jury (if there is a jury trial) also must be looked at. Did something go wrong here?
The preliminary instructions by the judge to the jury and the opening arguments of the attorneys are usually next in line.
Then there is the trial itself. Here, everything done by your attorney, everything done by the other attorney (or prosecutor if a criminal case), every decision made by the judge, and anything that happened with the jury (i.e., was there a sleeping juror?) has to be examined. This also includes what the witnesses testify to on the stand and all exhibits brought into the case.
Then, when both sides rest their case, there are the closing arguments. In criminal cases, the prosecutor’s closing argument can be a fruitful area to find issues on appeal.
Next comes the judge’s instructions to the jury. This is where the judge gives the law in the case to the jury. The judge defines the elements of the offenses or causes of action, tells the jury the standard and burden of proof and what the jury’s basic role is here. Are there any significant mistakes in the judge’s jury instructions? This is often a very fruitful area to find issues on appeal because we all make mistakes. Sometimes, a mistake made during the jury instruction can cause a case to be reversed on appeal. For example, was there an incorrect burden of proof told to the jury? Was there an incorrect statement of the law regarding the elements of an offense? There are a lot of possibilities for investigation here.
Then there is the jury deliberation process itself While no one but the jury gets to see what is going on here, certain things might come to light that could become important. Were there any jury questions to the judge? This can signal what the jury is struggling with, whether they are confused about something, or can indicate how the verdict might come out. How did the judge respond to the jury questions? Were both attorneys satisfied with this?
After the jury’s verdict is in, then there is the final phase of the case. In the criminal context, this is the sentencing hearing. In small cases, this can be just a few short minutes. In larger cases, it can be an actual evidentiary hearing where witnesses are put on the stand.
B. THE “FRANKENSTEIN” STAGE
This is when the actual issues in your case are developed and briefed. It generally involves quite a lot of legal research and writing. A brief must be put together that conforms to the Massachusetts Rules of Appellate Procedure and, when ready, filed with the Appeals Court.
The Appeals Court will establish a deadline for when the brief must be filed, which happens once the case is docketed in the Appeals Court (sometime after assembly of the record). If more time is needed to file the brief, however, the appellate lawyer can ask the Appeals Court for more time to file the brief. This is called a motion for enlargement and must come with the attorney’s affidavit explaining why more time is needed. The Appeals Court is usually pretty accommodating on these motions and it is common for both sides to seek more time. The basic reason for this is that immense amounts of time and effort generally go into creating an appellate brief and an appellate attorney may have a pile of cases to work on. This is normal, however.
If more time is needed, though, it is vitally important to follow the rules. If you fail to seek more time and miss the deadline, then the Appeals Court will issue a notice of dismissal of the case. If you fail to act on this, the appeal will be dismissed and you will be very much out of luck.
The goal of writing the brief, however, is to produce legal issues that are your best available and to posture them in the brief in the most persuasive way possible, all in the hope of convincing the Appeals Court to vote your way on the case.
Once your appellate lawyer files your brief, the other side (whether another private attorney in a civil case or an appellate prosecutor in a criminal case) must produce an opposition brief. The other side will also have time limits, but can seek more time if needed.
4. What Happens Once Both Sides have Filed Their Briefs?
Now that both sides have filed there briefs, the case gets assigned to a panel of judges. In the Appeals Court that is a panel of 3 appellate judges.
One unusual, though possible, development at this stage is that the court can decide to simply take the case under deliberation with no oral argument scheduled. This happens on occasion, though it is unclear why. If this happens to you, you can file a motion for an oral argument so as to get before the panel.
Most of the time, however, the case gets marked up for oral argument. A date is set for this. It requires both attorneys to go to the Appeals Court in Boston for the argument. Sometimes, the Appeals Court actually travels around and sits for a day in other cities. I have had this happen to me twice, when the Appeals Court came to Worcester. This was terrific for me because my office is a 3 minute walk from the Worcester courthouse. Most often, however, the oral argument is heard in Boston.
The oral argument, though very important for your case, is almost anti-climactic because it is a mere 15 minutes of presenting your case to the court, after your appellate lawyer has sunk a huge amount of time into the case. The person seeking the appeal (the appellant) goes first, and the other side (the appellee) goes second. Occasionally, however, the Appeals Court will designate a case for summary disposition, in which case they grant only 10 minutes to each side. It is unclear why they do this, but it happens. Most of the time, however, the court allots 15 minutes for each side to argue. So your case will be before the panel of judges for a half-hour in total.
Clients may attend the oral argument at the Appeals Court, but it is rare that they do so. It is just a bunch of lawyers sitting around waiting to be called and then, when they are, they argue for 15 minutes and then wait for the other side to do so. Then they leave. That’s it!
The court then takes the case under deliberation where they ultimately make a decision on whether to affirm the outcome at the trial court (you lose, if you are the appellant, and you win, if you are the appellee) or to vacate the judgment (you win). They can remand the case back to the trial court as well to order the court to do something, such as make further findings of fact. There are a range of prospects for outcomes here.
5. What Do You Do If You Win?
If you win on appeal, congratulations! It’s a big deal. Now you have to do 2 things. One is to follow the instructions given in the case, if any, by the Appeals Court. Maybe you now have to go back to the trial court. Maybe there is nothing to do because the judgment has simply been reversed. Who knows!
The second issue here is that the other side, whether it is the private attorney of the losing side in a civil appeal or the prosecutor in a criminal matter, can ask the Supreme Judicial Court to look at the case. This is called an Application for Further Appellate Review. It is basically a miniature version of a brief, which follows its own formatting rules, and is filed with the SJC for the purpose of asking this court to hear the case because, as you would argue, the Appeals Court got it wrong, they made a mistake here that really matters to the case.
The great majority of the time, applications for Further Appellate Review are denied. Plain and simple.
6. What Do You Do If You Lose?
Condolences. You too, however, can apply for Further Appellate Review. Again, the likelihood of getting the SJC to allow this and hear the case is slim.
One last point to make here is that it really does not matter where in Massachusetts your appellate lawyer keeps his office because all appeals go the Appeals Court or to the Supreme Judicial Court in Boston. My office is in Worcester, for example, but I have taken appeals and other post-conviction matters (such as motions for new trial) from all over the Commonwealth—quite a lot from Hampden County and Suffolk County, but from courts in every county in the state, including Worcester itself.
Okay, that about covers the basics on appeals. If you want to read up on the basics of a motion for new trial, click here.