Tag: appeal speed

How to shave months off the time it takes to conclude an appeal – Part II

Posted on October 2, 2015 by - Appellate

In my last post, I discussed the opportunities that will allow the smart appellate litigator to shave months off the time necessary to conclude a basic appeal, from start to finish, in the Oregon Court of Appeals. In this post, I discuss a few more time-consuming events that are less common, but may still be anticipated as part of a larger, time-saving strategy, as follows:

Consolidation of two appeals

Occasionally, the litigants may be litigating two cases, having similar issues, that are going up on appeal separately. Or, there may be an appeal from a Limited Judgment entered before trial, and then a second appeal from the General Judgment entered after trial. In either case, it is often desirable for reasons of “judicial economy,” to consolidate the appeals, to save time.

Sometimes, when two appeals are consolidated, they are simply assigned the same briefing schedule and oral argument schedule. In other words, the two appeals “travel together.” Other times, the two appeals are in fact consolidated into one appeal, sharing common briefing, and creating an appellant and cross-appellant situation. Either way, the consolidation of two appeals requires the filing of a motion (which requires experienced legal judgment), and an order by the Court of Appeals.

One way to save more time is to file a joint motion to consolidate (i.e., a motion by both parties, without objection from any party). While it may take time to negotiate the terms of the joint motion, a joint motion eliminates any dispute between the parties that would requiring resolution by the Court of Appeals, thus saving time-to-ruling, although a joint motion may still be denied.

Another way to save still time, is to file the joint motion to consolidate early, while preparation of the transcript and/or opening brief is underway. This approach means that the time consumed by the Court of Appeals to decide the motion will run concurrently with other necessary work, so the motion does not require any additional time. Conversely, if you really want to slow things down, wait until all the work is done before filing the motion to consolidate. The motion may still be granted, but now everybody is waiting for the motion to be decided by the Court of Appeals, before the next step may be taken, for example, scheduling oral argument.

Correcting the trial court record

Throughout the course of litigation, each party maintains a copy of the trial court’s file and, on appeal, each party relies upon their file to get their work done, rarely knowing or suspecting that the trial court’s file – which is the all important record on appeal – is incomplete. If the trial court’s file is incomplete, the record on appeal is incomplete. If this problem is present, it is usually not discovered until very late in the process, and the time necessary to correct the trial court’s file may take a month or two, or even longer, if the parties dispute what is necessary or permissible to correct the trial court’s file. Although an incomplete trial court file is an uncommon occurrence, if you would rather be safe than sorry, this potential delay can be avoided by taking a trip to the courthouse early on, to inspect the trial court’s file. This way, any necessary corrections can be made early on, concurrent with other work, saving much time later on.

Conclusion

As you can see from the above discussion, it is possible to anticipate even the unusual events that may delay an appeal by several months, and to eliminate those occurrences before the delay is unavoidable. It is not always easy to do, however, and expediting an appeal may be counter intuitive. We have all become accustomed to waiting for deadlines, and following the prescribed or expected path. Your appeals lawyer will need to be both experienced and proactive, but in the right case, expediting an appeal can be highly desirable, and it will almost always save money under the theory that the longer litigation lasts, the more it will cost.

How to shave months off the time it takes to conclude an appeal – Part I

Posted on September 30, 2015 by - Appellate

In a prior post, I discussed the time it takes, from start to finish, to conclude an appeal, and it can be a lengthy process. Today I will discuss the many opportunities a skilled appeals lawyer may seize to expedite an appeal, saving a client much time and therefore some expense.

For the purpose of this discussion, I will assume the role the appellant taking an appeal to the Oregon Court of Appeals. I do this for two reasons. First, the Oregon Court of Appeals is the busiest appellate court in Oregon and, second, the appellant is responsible for most of the work on appeal, and is therefore afforded the greatest number of opportunities to expedite the appeal. Some of the same opportunities will apply equally well, however, to the respondent on appeal.

The opportunities to expedite an appeal in the Oregon Court of Appeals, are as follows:

Entry of the judgment

This first opportunity to save time presents itself before the appeal is even filed. Although there are exceptions (not discussed here), most appeals are taken from a “judgment,” after it is “entered” in the registry. It is surprising, however, how long the parties and the trial court might take to prepare, negotiate, litigate, sign, file, and enter the judgment. In some cases, by nudging this process along, months can be saved by having the judgment prepared, signed, filed, and entered promptly, so that you can file your notice of appeal quickly after your loss in the trial court.

Filing the appeal

An appellant is allowed sufficient time, often 30 days (but not always), to prepare and file a notice of appeal, but there is no requirement to wait that long. By filing the notice of appeal early, you trigger the next event, and can easily shave three weeks off the time it takes to eventually conclude the appeal.

Preparation and filing of the trial court’s transcript of proceedings

After the notice of appeal is filed, the Court of Appeals will assign a court-approved transcriptionist, to convert the audio recording into a transcript of the trial court proceedings. Once the transcriptionist is notified by the Court of Appeals that he or she has been assigned the work, the transcriptionist will then contact the lawyer for the appellant, to provide an estimate of the cost, and to request pre-payment. At the same time, the transcriptionist will add this new assignment to his or her backlog of work, usually in the order received. If the transcriptionist needs more time, the transcriptionist can file his or her own motion in the Court of Appeals seeking an extension of time, and such motions are routinely granted by the Court. As you might guess, it may take several months or longer before the transcript is prepared and filed, especially if nobody is paying attention.

It is not necessary, however, to accept as fate this slow process. If your circumstances require otherwise, months can be saved by having the transcript prepared as soon as you know you will be appealing. Just be sure that you choose a court-certified transcriptionist and that you include his or her name in your notice of appeal, and further explain in your notice of appeal that the transcribing work is done, or already underway. This way, the Transcript Coordinator will know to assign the work to the transcriptionist you have already hired. In those cases where I want to save even more time, I will call a list of court-certified transcriptionists that I maintain in my office, to determine which transcriptionist is most available, and how soon he or she can get the work done.

Correction of the transcript

After the transcript is served and filed, there is a short period of time (14 days) to file a motion in the trial court to correct any errors in the transcript, and there are always errors in a transcript. Most of the time, however, the errors are insignificant. It is my practice never to file a motion to correct a transcript merely to fix typographical errors, misspellings, or other insignificant errors, if I can simply correct the error on appeal but using editorial insertions or references to other evidence, unless the typographical error, misspelling, or other thing goes to the heart of something that is important or dispositive on appeal.

If there is a risk of confusion on a key issue, or the error changes and important fact that you need on appeal, by all means, file the motion to correct the transcript. But remember, although the 14 day period to correct a transcript is short, the motion you file in the trial court may take a month, or several months, to resolve, before your appeal is back on track.

By avoiding an unnecessary motion to correct a transcript, you will save a month or more, not to mention the expense of the work. And remember, you cannot file your opening brief on appeal until the transcript is filed and “settled.” Settling the transcript requires the expiration of the 14 period to correct the transcript or, if a motion to correct has been filed, the entry of an order by the trial court correcting the transcript.

Preparation and filing of the opening brief on appeal

Although you are allowed 49 days from the settling of the transcript to file your opening brief, there is no requirement that you wait 49 days to file your opening brief. If you have followed my recommendations above, you will have obtained the transcript early, which means you can prepare your opening brief early too, and then file it soon (within days) after the transcript has settled. Once the opening brief is filed, the next deadline is triggered, for the other side to file its answering brief.

Preparation and filing of the reply brief on appeal

In many appeals, the appellant is permitted to file a reply brief. Other times, a reply brief may be optional, by leave (permission) of the Court of Appeals. Obviously, you cannot prepare the reply brief until you have the answering brief in hand, but if you know the answering brief is coming, you can reserve time on your calendar to do the work immediately, in order to get the reply brief filed early too. By planning ahead, you can save a month or longer in getting the reply brief filed.

Conclusion

The work itemized above is necessary for a basic appeal in the Oregon Court of Appeals. As you can see from the above discussion, it is possible to shave significant time off an appeal. It is not always easy to do, however. Your appeals lawyer will need to be both experienced and proactive. Expediting an appeal may be counter intuitive, as we have all become accustomed to waiting for deadlines, and following the prescribed or expected path. But in the right case, expediting an appeal can be highly desirable, and it will almost always save money under the theory that the longer litigation lasts, the more it will cost.

In a future post, I will discuss other time consuming events that may, but do not always, present themselves on appeal. By anticipating these additional time consuming events, still more time may be shaved off the time it takes to conclude an appeal, from start to finish.