The “appellate” process (having to do with an appeal) is unlike any other type of work that a lawyer does. A trial is all about convincing a judge or jury that you are right. An appeal, however, is all about arguing about whether the judge or jury were correct. In Arkansas, you make these arguments either to the Arkansas Court of Appeals or the Arkansas Supreme Court, both of which are located in Little Rock.
And depending on whether you won or lost at trial, you’ll be arguing something different before the appellate court. If you lost your case at trial and you appeal, you’ll be arguing that the judge or jury did something wrong. If you won your case at trial, however, then the other party has the right to appeal. In that instance, you’ll actually be defending what the judge or jury did at trial and arguing that the result should stand.
At trial, the point is to gather all the evidence you can and present it in an understandable, persuasive way. By the time you get to your appeal, however, all the evidence has already been gathered. That is why it’s so important to hire a firm that understands the appeals process and can zero in on the right issues to bring before the appellate court. It’s not enough that you should have won at trial; instead, you’ve got to show the appellate court a “reversible error”—a mistake that is serious enough for the appellate court to overturn the decision at trial.
The first step in an appeal is getting an Order that is “final.” This may sound straightforward, but many Orders are not final and therefore not appealable. Again, it’s important to make sure you hire someone who understands when an order is or is not final.
Actually, that’s not true: the very first step—the most important step in an appeal—is making sure that the trial record clearly preserves the error that you’re hoping to change. Under most circumstances, it doesn’t matter how terrible a trial court’s error is if it is not preserved.
Once you have an order that is truly “final” (and thus appealable), you’ve got to file a notice of appeal within thirty days of when the final order was entered. This notice is filed with the court that entered the order. Arkansas Rule of Appellate Procedure – Civil 3 tells you what needs to be in the notice of appeal.
The next step is preparing and filing the record, which basically gives the appellate court all the information it needs—all the facts—to determine whether there has been a reversible error. After that, you must “abstract” the record (turn it into a story that the appellate court can follow) and brief your arguments. The process of writing an appellate brief is one of the most challenging and important aspects of the law. It is, in some sense, the first step in making new law. A well-developed, thoroughly researched appellate brief is the most powerful tool an appellate lawyer has for persuasion.
After each party has briefed (and, occasionally, re-briefed) the issues in the case, the appeals court will then consider the briefs and the record and give its decision on the case, which is called an “opinion.”
Appellate law is a specialized practice area and you need to make sure that you find an appeals attorney that understands how to handle an appeal.