I want to appeal – How long will it take?

Posted on September 21, 2015 by - Appellate

Good question. Appeals are a slow process, with flurries of activity followed by periods of inactivity.

The typical progression of an appeal in the Oregon Court of Appeals

If you are the appellant taking an appeal to the Oregon Court of Appeals, the flurries of activity include the following:

  • preparation and filing of the notice of appeal
  • preparation and filing of a cost bond (or cash deposit) into the trial court
  • preparation and filing of a supersedeas bond, or “stay bond,” to stop execution of the trial court’s judgment
  • preparation and filing of the trial court’s transcript of proceedings
  • correction of the transcript, if necessary
  • preparation and filing of the opening brief on appeal
  • preparation and filing of the reply brief on appeal
  • preparation and attendance at oral argument.

The work itemized above is necessary for basic appeals, and it will take about a year for both parties complete all that is to be done.

Occasionally, other work may be necessary. For example, there may be a cross-appeal, requiring another round of briefing. Or there may be two appeals, that the parties will want to consolidate, by filing a motion to consolidate, and then waiting for a ruling from the Court of Appeals. Or it may be discovered that the trial court is missing part of the record, making it necessary for the Court of Appeals to “remand” (return) the case to trial court so that the parties and the trial court may correct the record. Or there may be a jurisdictional issue that will interrupt the flow of work while parties brief the issue and the Court of Appeals decides the issue. Or it may be necessary to file part of the record under seal, in order to protect the privacy of minors or patients. All of this will take additional time. One of these issues may take two-to-three months to resolve. If two or more of these issues are present, an appeal may take an additional six months to conclude. In the end, an appeal having moderate complexity may consume 1-1/2 years before the briefing is complete and the case is waiting to be argued to the Court of Appeals.

How long to oral argument?

After so much work, the next question often asked is, how long before oral argument? I checked my last three cases and found that oral argument was heard, on average, six months after the briefing was complete. One case took five months from the completion of the briefing to oral argument, the second case took nine months, and the third case took four months. The delay in getting to oral argument is a function of the Court of Appeals’ backlog of cases. As you can see, an appeal having moderate complexity may consume 1-1/2 years to complete the briefing, and take another six months to get to oral argument, two years total.

How long before the Court of Appeals decides my appeal?

The next question is often, how long before the Court of Appeals will decide my case? The answer may surprise you. If you are the appellant, you do not want a quick decision, because cases on appeal can be lost quickly – in one to two months – while winning takes time. If you are the appellant, winning takes time because the Court of Appeals must write and publish a decision reversing the lower trial court, a time-consuming process. For this reason, when I represent the appellant, I am always pleased when two or more months have passed and nothing is heard from the Court of Appeals. I am even more pleased when the Court of Appeals’ decision has been pending four months or longer. The court may still deny your appeal, but at least the time-to-decision suggests that the denial was not easily decided. In my experience, the longer the Court of Appeals takes to reach a decision, the better the odds of a favorable result.

How long overall?

As you can now see, appeals are a slow process, comprised of flurries of activity followed by periods of inactivity. The numerous periods of activity are spent waiting on the other side, or waiting on the Court. A basic appeal might take 1-1/2 years from start to finish, before the case is argued and decided, while a more complicated appeal, requiring “motion practice” to resolve one or more issues, may take 2-1/2 years from start to finish, before the case is argued and decided.

In my next post, I will discuss the several opportunities a lawyer can exploit to expedite an appeal, saving much time, and some expense.