Legal Appeals: Should There Be Limits or Changes in the Process, Research Paper Example
Words: 6826Research Paper
A dictionary explains appeal as a formal request to a court or to someone in authority asking for a decision to be changed. What does a word ‘appeal’ mean when it comes to criminal justice? Usually, an appeal is an official request that a higher court review a decision, indictment, or procedure of a lower court. The appeal process in itself differs greatly from the trial process. It has its own time limitations, technical requirements, costs and practice. Despite the fact that the requirements of different District Courts, Circuit Courts, and US Supreme Court differ, general points and rules of practice are common for all appeal procedures.
Any person that was convicted at a trial can exercise the right to appeal the court verdict at least once. A right to make one appeal is not literally specified in federal Constitution, but all authorities interpret constitutional laws and allow at least one appeal. According to U.S. Supreme Court interpretation of constitutional law all people who are indigent and have no money to hire a counsel have a right to get free counsel service.
It is extremely difficult to pinpoint any problematic thing about appeal process without profound knowledge of the subject. Appeal process involves application for leave to appeal, preliminary appeal statement, appeal process, and further appeal procedure in higher court if needed. So in order to explore the appeal procedure thoroughly and find imperfect things in the process of appealing, I will describe and discuss every point of appeal process in order to clarify its reasonability and reviewability.
First of all, there are three tiers of appeal courts in the federal court system. District courts are trial courts. There are 94 of them, one or more in each state. In trial courts all arguments are discussed, prosecutions are undertaken and juries adjudicate the case. If the indictment of the trial court does not satisfy the defendant, the case may be appealed to circuit Court of Appeals. There are 13 U.S. Courts of Appeals, each for certain judicial districts, and in Georgia there is a Court of Appeals of The State of Georgia. Three justices decide the case and give their verdict. Decision of the circuit Court of Appeals can be appealed to the U.S. Supreme Court. It is the highest court and its decision is final. Nine justices decide the case. Though theoretically it is possible to appeal until you get to the U.S. Supreme Court, only cases of federal importance can make it to such a high court. Factually, in order to get a leave to appeal one should have excellent written briefs and other papers to be filed and serious objective reasons.
Cases When There Is a Need to Appeal
The defendant may claim that during trial some law was misinterpreted or wrongly applied. For example, claims like one that the oral testimony was incorrectly admitted by the judge or that the judge improperly instructed juries, or that evidence used for prosecution was obtained in violation of the defendant’s constitutional rights are possibly the reasons to appeal. If the defendant pleaded guilty, there are very few grounds for appeal. In case the appellate court decides that significant errors were made during the trial, the defendant will get a new trial. If the appellate court finds out that at the trial government failed to prove all elements of the offence, it is a reason for total retrial and defendant being free (ABA,2008). In the whole, reasons for appeal must be clear, structured and explained. Problems with correct reasoning in appeal process will be discussed in the appeal problems part of paper.
A criminal appeal process starts with the case being taken to the court of appeals.
Taking Your Case to the Court of Appeals
Except in cases involving the death penalty, no appeal as of right lies to the Court of Appeals from an order or judgment entered in a criminal proceeding (Rules of Practice, 2005). First step in appeal process is having a leave to appeal. According to Court of Appeals of The State of Georgia rules of practice an application for the leave to appeal must be filed in the court ‘within 10 days of the entry of the trial court’s order granting the certificate for immediate review; entry of the trial court’s order shall be the date it is filed with the trial court clerk’ (Court of Appeals of Georgia: Rules)
It is important to understand that motion for leave to appeal in not the same as an appeal. The motion for leave to appeal is a short paper that is necessary to inform the district court and appellate court about party seeking for appeal. Nearly in all appellate courts it must be filed within ten days of the entry of the trial court’s order. Despite the fact that this document is short, one should hire an appellate lawyer and file the motion for leave to appeal in time. Just like all papers involved in appeal process, motion for leave to appeal must be masterly written and need professional approach. An experienced federal criminal attorney can be hired or consulted with. You can also ask a layer who represented you in the trial to prepare, assist or to file the motion to leave an appeal in the Court of Appeal. (Wisenberg, 2008)
If you fail to file the motion for leave to appeal in time it is almost impossible to save the day. It is common practice to file the motion for leave to appeal and then dismissing it after change of mind.
In my opinion, in spite of the fact that ten days is a short term there is no need to change it. There is no possibility of shortening ten-day term, but an extension of the term of filing such a simple paper can lead to changes of all filing terms. It can lead to considerable time delays in Court work and affect an efficiency of justices and clerks work. Also it can lead to less responsive attitude to the process of appeal.
Preliminary Appeal Statement
Within 10 days after the a certificate granting leave to appeal is issued, the appellant must file with the Clerk two copies of a Preliminary Appeal Statement, with proof of service of one copy on each other party. Preliminary Appeal Statement should include a letter application that must contain names of codefendants and the statuses of their appeals (if there are any), proof that this motion has not been addressed to an Appellate Division, kind of hearing on the application, and the grounds upon which leave to appeal is sought (Rules of Practice). Attention must be focused on preservation of the error and parts of the record that represent the questions to be reviewed.
If some statute is considered to be unconstitutional, an appellant must give a written notice to the Attorney General before filing the preliminary appeal statement (Rules of Practice). A copy of this notice should be attached to the preliminary appeal statement. After review of the preliminary appeal statement the parties will be notified by the Clerk about terms and conditions of their appeal.
Intermediate court appeals must include briefs and records as well. An application for coram nobis relief must contain the decision and order that are sought to be appealed from, supporting papers and intermediate court decision as well as briefs. Reargument or reconsideration of the case is also available if a request in letter form is written in time. Usually term of reargument is not longer than 30 days. Also, Preliminary Appeal Statement may include additional papers considering defendant’s state (incarcerated or at liberty) and other details (Rules of Practice).
This part of appeal process seems complicated for those who have read it once, but all these papers are essential for Clerks and justices work. I think that this stable and working system of preliminary appeal statement filing is logical and should not be limited or changed.
In different states there are different ways of appeal procedure. In Georgia Court of Appeals there are interlocutory appeals and discretionary appeals. In New York Court of Appeals there are two procedures – an alternative one and normal course one.
Normal course procedure is applied to most cases. Very important thing about normal appeal procedure is filing of different materials.
Rules of Practice declare the next features of the normal appeal procedure. First of all, dates are not preset in the appeal procedure. Schedule of filing the record materials and briefs is set by the letter from clerk of Court. On the certain date that is specified in the schedule letter the appellant ‘shall serve and file record material and shall remit the fee’. An original and 24 copies of the brief with proof of service of three copies on each other party must be also filed. If no scheduling letter is issued, the term for filing the documents is 60 days after defendant took the appeal by issuance of a certificate granting leave to appeal. In turn, respondent should file an original and 24 copies of a brief with proof of service of three copies on each other party. If no scheduling letter is issued, the term for filing the documents is 45 days after service of appellant’s brief. Reply briefs are not required but may be served and filed by appellant on or before the date specified in the scheduling letter. The same amount of copies and 15-day term in case there is no scheduling letter. Amicus curiae briefs and briefs in response to amicus curiae briefs can be filed too but are not necessary.
Alternative Procedure can be applied to appeals selected by Court. ‘Such appeals shall be determined on the intermediate appellate court record or appendix and briefs, the writings in the courts below and additional letter submissions on the merits. The clerk of the Court shall notify all parties by letter when an appeal has been selected for review pursuant to this section.’ (Rules of Practice, 2005) This kind of review may be requested in the preliminary appeal statement by appellant or by respondent in the letter to the clerk of the Court within five days after the appeal is taken.
There are several reasons for a Court to choose an alternative procedure: mixed questions of law, recent precedent, narrow issues of law not of statewide importance, nonpreserved issues of law or other appropriate factors. Within 25 days after initiating the alternative review procedure, the appellant should file three copies of the intermediate appellate court record or appendix and three copies of each brief filed by each party in the intermediate appellate court, an original and two copies of a letter stating its arguments in support of appellant’s position on the merits, a disclosure statement, proof of service of one copy of its arguments on each other party, and remit the fee. Within 20 days after service of appellant’s submission, respondent should file an original and two copies of a letter stating its arguments in support of its position on the merits, a disclosure statement, if necessary, and file proof of service of one copy of its arguments on each other party. An appellant’s reply is not permitted unless authorized by the Court.
If a party fails to address or reserve in a written submission to this Court some of its arguments, they deem to be abandoned. A letter scheduling the filing process may also be issued by the clerk (Rules of Practice).
In the Rules of Practice these points seem quite daunting, especially given the fact that so many copies are needed. All of these copies are necessary for a normal operation of the Court judiciary system. And it is much more difficult to understand what a brief is and what its role is. Rules of Practice of New York Court of Appeals set the next requirements for the briefs.
All briefs should contain a table of contents, a table of cases and authorities and, if necessary, a disclosure statement. Appellant’s brief should include a statement showing that the Court has jurisdiction to entertain the appeal and to review the questions raised backed up by citations of the record or appendix. Respondent’s brief can also have a supplementary appendix attached to it.
‘The original of each brief shall be signed and dated, should have the affidavit of service affixed to the inside of the back cover and shall be identified on the front cover as the original’ (Rules of Practice). Each brief may indicate the status of any related litigation as of the date the brief is completed before the table of contents in each party’s brief. Brief covers must be white and must contain strictly defined information about the party and brief and information about necessity of oral argument. Records, appendices and exhibits that supply arguments are also strictly regulated.
This part of procedure cannot be changed because of the nature of the appeal process. What is the reason for such rules? Why are briefs so important and how to define a brief so as to understand it easily?
A brief is a written document filed by the appellant that provides the court with an objective specification of the facts of the case, followed by an argumentative subjective argument of the specific legal errors that are supposed to have been committed in the district court. Each fact statement has to be followed by an exact citation to either the transcript of the proceedings or a piece of evidence that was admitted in court. Each subjective argument must be supported by a citation to a precedent, statute, or constitution that can provide authority for that argument. Three briefs – opening, responsive and reply are required in most courts. In all three cases every single argument, however creative, must me supported. Legal system of the U.S. is based on the principle according to which the decision in previous cases influences current cases, so finding a support of the arguments requires extraordinary writing and research skills. True, undistorted facts can be arranged in a persuasive way and thus ease a Courts’ work and increase chances to win. Poorly written facts can lead to a quick failure of the appeal. Well arranged, impeccably supported clear facts are crucial for a successful appeal.
One of the rules of Georgia Court of Appeals reads:
‘If an appeal is decided by a Division, a judgment in which all three judges fully concur is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said. If the appeal is decided by a seven or twelve-judge Court, a full concurrence by a majority of judges is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there are concurrences in the judgment only or special concurrences without a statement of agreement with all that is said in the Division, resulting in a general concurrence by less than a majority of the judges with respect to the Division. The opinion of a case which is physical precedent shall be marked as such.’(Court of Appeals of Georgia: Rules, Opinions and Judgments)
Given the hereinabove fragment I result that binding precedent which is obligatory to follow is a very strong impulse to write a concise and original briefs. Importance of the clearly written briefs cannot be underestimated. According to the U.S. Courts’ statistics, nearly three fourth of federal appellate cases all over the country were resolved without oral argument in 2007 (Wisenberg, 2008). The fact speaks for itself – a successful brief is a key to success. And it is obvious that a brief must be written by a professional appellate lawyer who possesses excellent writing skills.
It must be taken into account that negligible small things count for Court o? Appeal. If a party fails to comply with simple rules of document formatting her documents will not be filed. Wrong color, improper formatting and bounds can be miniscule but treacherous things. Federal appellate courts are extremely serious about their technical requirements. The lengthy criminal appellate process is made even lengthier by errors that might seem negligible to those who have never worked with enormous amounts of information. Improperly bounded paper can break somebody’s life. Strange as it may seem, this fact does have a reason.
First of all, knowing such rules and technical requirements of filing briefs shows attention to details and respect for the process. In Courts of Appeals usually work real professionals who take care about correctness of papers that judges work with. Following the rules and directions of the court clerks is a step to mutual respect and respect to a work of judges.
Adrienna Wisenberg in her article admits that in her opinion little things mean a lot in the world of criminal appeals (Wisenberg). Most appellate judges work for hours every day, and this is rather mundane work. Law clerks tend to work even harder. Things that are insignificant for a usual person can be irritating and distracting for a tired appellate judge. Consequently, error-free and concise brief with well explained arguments is perceived with more interest and respect. So even such things as technical requirements are not some demand of capricious bureaucrat. It is a physical necessity to optimize the process and make it as non-irritating for Court workers as possible.
Questions of time are extremely important when it comes to complicated cases. As failure to file all necessary papers in time leads to the dismissal of the appeal (Rules of Practice), it is an important point that reasonable time extensions are available on telephone call and further procedure of notification all the parties about time extension. This is quite a reasonable addition to the strict filing rules. In my opinion the system of filing the documents is rather loyal. Nearly all rules have points concerning exceptions from the rule. Terms can be extended, costs can be eliminated, and technical requirements meet reasonable standard. But despite this loyalty there are still some problems about appeal process.
Usually, due to the fact that appeal process is absolutely different from the trial process, appeal process is slow. It can be seen from the schedule – ten days, then ten more days, then sixty days, and more and more. Federal appeals that take several months or even year or more are commonplace. This fact can be easily explained – all federal courts are snowed under with work. The courts usually judge each and every case or legal claim individually, and it is time-consuming. Some parts of the process now are technologically improved – for example, electronic filing is available. But the central practice of the appellate process, the process of reading, considering and researching the arguments, cannot be improved technologically. Judges are human beings and everybody wants his or her case to be undertaken attentively and profoundly. The precedent system is now used in our legal system, and every case can be crucial for argumentation of the successors.
I can think of a limitation of time for judges to make a decision or introduction of technological elements in the decision making. But given the facts and reasoning hereinbefore I do understand that a judicial system of U. S. is a well organized structure and every circumstance or rule has a real and logical reason. So even provided the fact that a pace of life now is higher than hundred years ago, general points about justice did not change and for those who are in need of fair and well-reasoned appeal time is not a matter.
Oral arguments are a permissible but very limited. Maximum time for oral arguments is restricted to thirty minutes per party. More time can be allowed on special written request. In vast majority of cases one counsel is allowed to argue for a party. Time for rebuttal can be reserved by appellant, but respondent cannot reserve time for sur-rebuttal.
As stated above, most federal appeals are decided without any in-person contact with the court – the briefs are filed, a certain amount of time passes, and a decision arrives by email or mail. In federal criminal cases, the judges are likely to have many questions about the facts, the law, before they make a decision whether to reverse the sentence or not. Oral argument is a brilliant opportunity to persuade the judges that your position is right. It cannot be underestimated. As oral argument is usually not granted, an appellate lawyer should encourage the court to grant it. The best way to do this is to write an outstanding brief that raises convincing legal issues. It requires writing skills and creative thinking. Once oral argument has been granted, other skill is needed. To present the case on paper is one skill, but to describe it orally is an absolutely different case. And oral argumentation dives more possibilities to represent your point of view in a best way. This is a view of an appellate lawyer (Wisenberg)
According to Michel Duval who reviewed the oral argumentation from the judges’ point of view, oral argumentation is not granted for several reasons (Duval, 2007). He admits that most judges tend to think that oral argument very rarely can win an appeal. In his article Duval exemplifies his point of view with Chief Justice admission that only in a tiny minority of the cases in where oral argument was involved he had left the court room with the feeling that he changed his mind about the case (Duval). Oral admissions can be justifiable in the Supreme Court as cases are much more complex than in vast majority of district courts. There is an opinion that judges use oral arguments in order to persuade one another. This expression can be easily explained. A counsel in the Supreme Court presents his arguments and lays them open to criticism. If a judge consider that some point of the argumentation is not fully developed there is a probability that a counsel can make his mind and explain it satisfactorily, which is not available in brief consideration.
The appellate courts often begin their oral argument sessions with strict directions to appellate counsel about what is and is not acceptable. Everything in the oral process is very stern and ruly. Due to the fact that an oral session is limited, incredible mastery of the counsel is needed. Unprepared counsel has no chances of winning the case. Thus only best appeal lawyers take part in oral arguments, thus making it very active and remarkable. Experience of lawyer is the key to success in oral argument. In general, oral argument can be critical for the case decision, but only in very few cases. From the court clerk’s point of view very few oral arguments should be granted, and in case there are very important and critical cases in which oral argument is willingly granted should receive additional time. Luckily, Rules of Practice of every Court include a procedure of prolonging oral argument time.
So, oral arguments are rare and not granted, but they do help people to assert their rightness. What is bad, however reasonable, about existing process of appeal in my point of view is hard regulation of oral arguments. Though it certainly enhances mutual respect and underlines that justices have no time for oral battles, it has one serious deficiency. As mastery of the appellate lawyer is the thing that matters most in such cases, there are a lot of people who cannot hire a counsel with excellent writing and speaking skills. It becomes a matter of wealth. It will be too presumptuously to offer a decision of this problem. There will always be some issues that depend on qualification and skills. What I desire is equality in abilities.
US Supreme Court Appeal Process Description
When a direct appeal from a decision of a district court is authorized by law, the appeal is commenced by filing a notice of appeal with the clerk of the district court within the time provided by law after entry of the judgment sought to be reviewed (Rules of the Supreme Court of the United States, 2007). This time may not be extended. The notice of appeal must specify the parties taking the appeal, specify the judgment appealed from and the date of its entry, and specify the statute or statutes under which the appeal is taken. A copy of the notice of appeal must be served on all parties to the proceeding and proof of service shall be filed in the district court together with the notice of appeal.
Parties interested jointly in the judgment may appeal separately, or any two or more may join in an appeal. When two or more judgments involving the same or closely related questions are sought to be appealed from the same district Court, a single jurisdictional statement covering all the judgments will be issued.
No more than 60 days after filing the notice of appeal in the district Court the appellant must file 40 copies of a jurisdictional statement and must pay the docket fee (except that an appellant proceeding in forma pauperis).The case will then be placed on the docket. It is the appellant’s responsibility to inform all appellees at the appointed time, on a form supplied by the Clerk, of the date of filing, the date the case was placed on the docket, and the docket number of the case. The appendix must include a copy of the motion for leave to appeal showing the date it was filed in the district Court. Time extension applications to file a jurisdictional statement are not favored but can be submitted. (Rules of the Supreme Court of the United States)
No more than 30 days after a case has been placed on the docket, an appellee seeking to file a conditional cross appeal must file a jurisdictional statement with proof of service. A cross-appealing appellee shall pay the docket fee or submit a motion for leave to proceed in forma pauperis. It is the cross appellant’s responsibility to notify all cross-appellees promptly, on a form supplied by the Clerk, of the date of filing, the date the cross-appeal was placed on the docket, and the docket number of the cross-appeal. Filing a cross-appeal terms cannot be extended (Rules of the Supreme Court of the United States).
An appeal can be dismissed at the request of the appellant with notification to all parties. If a notice of appeal has been filed but the case has not been placed on this Court’s docket within the time prescribed for docketing, the district court may dismiss the appeal on the appellee’s motion with notice to all parties. ‘If the district court has denied the appellee’s motion to dismiss the appeal, the appellee may move this Court to docket and dismiss the appeal by filing an original and 10 copies of a motion.’ (Rules of the Supreme Court of the United States) The motion must be accompanied by proof of service and by a certificate from the clerk of the district court certifying that the appellee’s motion to dismiss was denied. The appellant may not afterward file a jurisdictional statement without special leave of the Court, and the Court may allow costs against the appellant. (Rules of the Supreme Court of the United States)
If a cross-appeal has been docketed, distribution of both jurisdictional statements will be deferred until the cross appeal is due for distribution under this Rule (Rules of the Supreme Court of the United States).
Any party may file a supplemental brief at any time while a jurisdictional statement is pending, drawing attention to new cases, legislation, or other prevailing matter that was not available at the time of the last filing of the party. A supplemental brief must contain a new matter only. Forty copies shall be filed, except that a party proceeding in forma pauperis including an inmate of an institution, shall file the number of copies required for a petition by such a person. (Rules of the Supreme Court of the United States)
After considering the documents distributed under the Rule of Supreme Court of the United States, the Court may dispose summarily of the appeal on the merits, note probable jurisdiction, or postpone consideration of jurisdiction until a hearing of the case on the merits. If the case is not disposed of summarily, it stands for briefing and oral argument on the merits. If consideration of jurisdiction is put off, counsel at the outset of their briefs and at oral argument must address the question of jurisdiction. If the record has not previously been filed in this Court, the Clerk of this Court will request the clerk of the court in possession of the record to certify and transmit it. (Rules of the Supreme Court of the United States)
Main rules of the Supreme Court of the United States and other Courts are very much alike. The appellate process consists of motion for leave to appeal, appeal hearing, and consideration. Supreme Court will only consider the cases of federal importance or concerning constitutional laws. Circuit courts receive appeals from district courts and more and more work is done by the clerks.
There are very few cases when a criminal offence can reach a US Supreme Court. But for Circuit Courts and District Courts criminal appeals are rather ordinary.
Most Common Problems That Appellants Face
One of most popular problems is a litigation cost. In the whole, the longer the district court trial process and the more difficult the case, the higher the cost of litigation will be. It is true for federal appeals. Long proceedings transcripts and piles of documents take a lot of time to read and consider, and usually include a lot of potential points that can be appealed. Such amounts of information require staff to work on it and it results in increasing fees.
It is impossible to define a cost or to predict a cost of every proceeding, but it is obvious that an appeal from a simple case would cost significantly less than an appeal from a month-long, complicated white-collar jury trial. Time that will be needed to appeal is also hard to predict as each counsel spends her own time on writing briefs, reading records and researching laws.
But other expenses that do not correlate with staff and attorney time can be easily estimated by the experienced appellate lawyer. Current cost of filing the criminal appeal is $455 (Wisenberg). This sum is unified and is the same nationwide. Arguably, the highest expense is a transcription cost. Different courts employ different reporters, but it does not affect greatly the cost of the on page of transcription. Usually a full transcription is rather big so it is reasonable to consult a court reporter in order to establish approximate cost ahead of time. If the reporter is experienced enough, he or she can provide a reliable and rather accurate estimate. The resulting cost depends on a range of factors, including the related cost per page of the transcript, and how many hours of testimony takes place each day.
In some courts appendix can also be a rather big expense. Some federal appellate courts in actual fact get the complete district court record as a matter of course – it is lend usually at no cost by the District Court to the Court of Appeals. However, in some federal circuits, the litigants must provide the Court of Appeal with copies of district court records that contain applicable issues. Such appendix usually must be formatted, bound, and paginated. If the trial was several weeks long this task is not only laborious, but costly as well. But such requirements are not common place. Some federal appellate courts have now introduced a new technology that allows litigants to file their briefs and records electronically. In such cases time when litigants had to pay spend lots of money on seemingly useless things is well and truly over. Now these costs vary greatly from court to court. I think that courts should be motivated to introduce a technology into their appeal process. Thus they will make all states equal and ease the procedure of appeal.
Another common problem is preserving the mistake in transcription. It is a task for a counsel to find it and then to generate a situation when this mistake will be either corrected, or preserved. As appellate courts work with transcriptions, simple phrase ‘Objection, Your Honor!’ does not work. What is a preservation of the error?
Preservation of mistake for appeal is an idea that some lawyers fail to understand, let alone their clients. It is not obvious and thus rarely thought of. The main idea is that the district court must have a clear opportunity to correct its error when it happens, before the Court of Appeal will judge it and correct it. To say in simple words, if the counsel fail to notice the error and thus do not object to it in due time, she deprives the court of the opportunity to correct its own mistake. In such case appellate courts can decline the appeal. This concept, sometimes called waiver, has common sense. After all, the appellate court exists to correct mistakes made by the lower court. “If the district court wasn’t presented with a timely and correct objection, it didn’t have a chance to rule on the error, so there is no mistake to correct” (Wisenberg, 2008).
Appeals live and die by what happens in the district court, and in particular by the skill and shrewdness of trial counsel. A really talented trial attorney can preserve an error without offending the court or seeming too obtrusive. Again, the person who can pay for the work of talented advocate has more chances to win than a person that can’t.
Literally, ‘habeas corpus’ means ‘you may have the body.’ ‘A habeas corpus procedure challenges a conviction based upon the grounds that you are being held in prison in violation of your constitutional rights. Habeas corpus is not an appeal but a separate civil proceeding used after a direct appeal has been unsuccessful. It is a federal civil proceeding initiated in federal district court’ (ABA, 2004).
Though habeas corpus is not an appeal, it is an example of the procedure that can be undertaken in case your appeal was rejected or failed to reach its target. Though appellate process is a complex and multilevel proceeding, it cannot cover all the cases of judgment errors or misconceptions.
But what are the most beneficial things about appeals? What practices are the most successful and must be taken into consideration when examining possible changes? In order to specify the most beneficial things I reviewed an article from The Journal of Appellate Practice and Process Articles (Binford, 2007).
Court of Appeals of the State of Georgia was one of thirteen the participants of the study aforementioned. The survey itself consisted of 42 descriptive questions things like the number of filed appeals, number and kinds of opinions issued, court budget, court staffing, time delays on every stage of the process, oral arguments, motion practice, panel structure, and statutory periods and internal training, among others. The courts were also provided the opportunity to identify factors that they consider to contribute most to delays in case processing, as well as technical and other innovations that courts have implemented to increase efficiency. (Binford, 2007, p.43) The Courts were required to use data from 2005 to make a survey actual. Several ways of collecting data were involved in order to make this study as objective as possible.
One aspect of the research was an efficiency of the courts. The term efficiency means time gap between filing the case and judgment. And most courts failed to meet the American Bar Association Standard that sets 280 days total for appeal proceeding. In fact, they exceeded the standard time by more than 160 days (Binford, 2007, p. 59). This fact cannot be ignored despite the fact that we presumed that judges have a lot of cases to consider and work very thoroughly, thus spending long time on each appeal. The time limit, though existent, is ignored and it is a thing to take care about.
In order to pinpoint the most time consuming stages of the appeal process, it was divided into five stages: period from the filing of the notice of appeal (motion for leave an appeal in criminal case) to settlement of the record; period from settlement of the record to completion of briefing; period from completion of briefing to oral argument (if any); period from oral argument to issuing a decision; and period from issuance of a decision to issuance of the appellate judgment.
The research showed that current ABA standard of sixty days for the first stage that is recorded in most ruled of practice is generally exceeded. What can be limited or changed about it? Though federal standard exist and rules are established, these regulations are ignored. I can see the only way to change this situation: some measures of controlling the courts’ adherence to the rules of practice can be undertaken. Several problems appeared with utilizing case tracking software and serious underuse of its benefits.
The second stage is limited to 100 days by the ABA standard, and only North Carolina Court of Appeals proved its ability to meet this deadline. The most widespread reason for failing to meet the filing deadline is claimed to be the high number of requests for extensions of time. Though district courts are rather loyal when it comes to time extensions there is a reason for such tolerance. Usually, briefed cases wait several months until the date of hearing. And it is just fair to provide counsels with an additional opportunity to file their briefs. In my book it is a good practice and nothing should ? changed about regulations of the second stage.
Third stage, oral argument, must take 55 days to complete. It comes as no surprise? that most courts fail to meet this time limit. The Court of Appeals of the State of Georgia reports that oral argument is no longer permitted whatever the case, and that this change seems to have improved court efficiency. (Binford, p.79) Vast majority of cases is decided without oral argument in other courts.
Issuing a decision is a unique stage. Nearly all courts report that they are able to meet the standard of 55 days. In the whole, it is obvious that when it comes to meeting the standards of American Bar Association most courts fail to provide a timely service.
This research also deals with other issues that are not as informative and significant as deadlines.
Appeal is a long and complex procedure. It cannot be analyzed one-sidedly. Consumer’s point of view reveals hard restrictions, strict regulations of formatting, and appeal expenses. Counsel’s point of view reveals some points of judges’ work, oral argument importance, explanation of need for proper formatting, and necessity to hire an experienced appeal lawyer. Clerk’s point of view reveals judges’ attitude to the process and rules. Researcher’s point of view is more objective as it is based on qualitative and quantitative analysis of court efficiency.
Different stages of the appellate process are constantly honed and perfected in accordance to modern technical level and social conditions. There are some federal rules that are common for all appeal practices and they are the most general. Other proceeding details may vary from court to court, but they also do correspond to the rules and goals of appeal process. What can be changed about the process as a whole? In my opinion, there should be some clear rules as to how long must an appeal last and they must be adhered to. Obvious as it may seem, this regulation may save the appellants time and sometimes lives.
To conclude the research, I shall say that the federal court system of the U. S. has been working for a long time. Considerable changes have been made to it in the course of history. But what we can see now is a stable and workable court system that allows every case thorough consideration ad fair decision.
ABA Family Legal Guide. Criminal Justice. May I appeal my conviction? Retrieved February 26, 2009, from FindLaw Web site: http://public.findlaw.com/abaflg/flg-15-3h-1.html
What is Habeas corpus? Retrieved February 26, 2009, from FindLaw Web site: http://public.findlaw.com/abaflg/flg-15-3h-4.html
Court of Appeals State of New York. Rules of Practice (22 NYCRR Part 500) (2005) Retrieved February 26, 2009 from: New York State Unified Court System Web site: http://www.nycourts.gov/ctapps/500rules08.htm
Duval, M. (2007) When is oral argument important? A judicial clerk’s view of the debate, The Journal of Appellate Practice and Process, 9(1) Retrieved from: Free online library Web site: http://www.thefreelibrary.com/When+is+oral+argument+important%3F+A+judicial+clerk’s+view+of+the…-a0176776332
Rules Retrieved February 26, 2009 from: Court of Appeals of the State Georgia Web site: http://www.gaappeals.us/rules2/
Warren H. Binford, Preston C. Greene, Maria C. Schmidlkofer, Robert M. Wilsey, Hillary A. Taylor (2007) Seeking best practices among intermediate courts of appeal: a nascent journey, The Journal of Appellate Practice and Process, 9(1) Retrieved from Willamette Web site: http://www.willamette.edu/wucl/pdf/clp/CLP_BestPract08.pdf
Wisenberg, A. U. Federal Criminal Appeals: 10 Things You Should Know. Retrieved February 26, 2009, from FindLaw. For legal professionals Web site: http://library.findlaw.com/2008/Apr/22/247196.html
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