Should I Hire an Appellate Attorney for My Appeal?
The short answer is yes.
I doubt you’re surprised by that answer. When is the last time, after all, that anyone heard of a lawyer turning down business? Truthfully, everything really doesn’t require a lawyer. Powers of attorney and (truly) uncontested divorces and simple wills can all be done without (or minimal input from) a lawyer.
Arkansas appeals are just not that way. The substance of the appeal itself (the part where you actually argue about the law) is complicated enough, but that’s not why you must have an appellate attorney. With enough research and time, nearly anyone can understand a legal issue. The reason you must have an appeals attorney is because the appellate process in Arkansas is not really geared toward making decisions about the law. It is geared toward weeding out appeals that don’t check all the right boxes. Put another way, the Arkansas Court of Appeals and Arkansas Supreme Court are more like the Pharisees than Jesus: The rules matter a lot more than the truth.
There are (at least) three areas that require the expertise of an appellate attorney: Jurisdiction, Finality, and Preservation. Jurisdiction refers to a court’s authority to hear the case. Finality requires that a trial court order be “final” before it can be appealed from. Preservation means that for an appeals court to consider an issue, it must have been argued and ruled on by the trial judge. If that description makes them sound straightforward, I have misled you.
As I recall, we spent much of the first semester of law school discussing jurisdiction, so I won’t scratch the surface here. The most confusing aspect of appellate jurisdiction is when and how to file a notice of appeal.
For the Arkansas appeals courts to have jurisdiction over the appeal, there must be a notice of appeal filed within 30 days of the order you want to appeal. Well—most of the time.
Certain motions filed after the order was entered will prolong (“toll” if you want to speak lawyer) the 30-day period. If the court rules on the motion, you have 30 days from the order. If the court does not rule on the motion by Day 30, it is automatically denied. If you want to appeal the issues raised in the motion, you’ve got to file a (or another) notice of appeal within 30 days of it being denied or “deemed denied.”
The timeline for orders and motions is not always clear-cut, however. In reality, both parties might have filed multiple motions between the court’s decision and the order being entered. Order gets entered, more motions. But which ones toll the 30-day period in which to file a notice of appeal?
That is not entirely clear, and many attorneys make mistakes failing to file a notice of appeal at the right time. If attorneys make mistakes on this point, it is far more likely that a non-lawyer would do. (This brings up another important point: If you want to appeal, it’s not enough that you hire any lawyer. You need to hire someone who regularly handles appeals. If not, they might not know much more than you do about appeals in Arkansas.)
Of these three difficult areas, finality is the most perplexing. I am convinced that if you took a random group of Arkansas attorneys, gave them an order, and polled them on whether it’s final, you would have no consensus. And although it would be better with those familiar with appeals, even that is not a sure thing.
The truth is that finality is a moving target and it’s hard to find absolute rules for what makes an order final.
Appellate courts require final orders to avoid hearing appeals in fragments. Ironically, however, the strict finality requirements often cause the appellate court to see the same case two or three times, each time sending it back down for the parties and trial court to figure out how to make a final order.
Orders are final if they “dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy.” This means that an order must decide all the issues that were raised by all the parties.
There are several exceptions to this general requirement. If a non-final (“interlocutory”) order is issued but its resolution would solve the case, a party can appeal it for the sake of judicial economy. Other types of orders that are final per se include orders where an answer is stricken, grants or denies a new trial, appoints a receiver, etc. All probate orders are final and therefore appealable.
A party may also ask the trial court to certify the decision as final with a Rule 54(b) certificate, which is appropriate in certain circumstances. The rules about 54(b) certificates are not intuitive and are particularly tricky for the would-be appellant.
An appellate court does not rule on the merits of a case; instead, it rule