Learn Law For All

Insider Secrets for Appealing Court Decisions

• Launi Sheldon and Guests

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Discover the intricate layers of the legal appeal process as we sit down with Arizona's finest legal minds, Michael Dinn and Randi Burggraff. This episode strips away the complexity, revealing the essentials of filing an appeal, the pivotal 30-day post-judgment period, and the impact of jurisdiction. We'll dissect the importance of crafting a strong trial court record, ensuring all your arguments and evidence are perfectly positioned to support a successful appeal. It's not just about the law; it's about strategy, timing, and the art of preservation during trial - knowledge that every legal enthusiast and practitioner should arm themselves with.

Navigating the oft-overlooked terrain of court transcripts becomes less daunting as Michael and Randy share their expertise on managing this critical piece of the appellate puzzle. Understanding the financial commitment of an appeal is crucial, and we break down the costs and responsibilities that come with pursuing justice at a higher level. Listeners are also treated to a masterclass in mediation from our recent Continuing Legal Education seminar, providing a fresh perspective on resolving disputes outside the courtroom. Engage with us as we chart a course through the technical, financial, and strategic intricacies of appealing a judgment, all while drawing from the deep well of experience our esteemed guests bring to the table.

Launi:

Hi, I'm Launi with Learn Law For All, and today on our podcast we have Michael Dinn, who is on our left, and Randi Burggraff, who's on our right, and they are attorneys in Scottsdale, arizona. They're going to talk to us today about appeals, but before we get to that, I do like to do our disclaimer. This podcast is for informational and entertainment purposes only, and educational purposes really too. We're going to give specific legal advice. We're all only licensed in Arizona, and so listening to this podcast, watching the video, does not create an attorney-client relationship or privilege. So just keep that in mind as you're listening. Thank you, guys, so much for being here, of course, thank you.

Launi:

Okay, so we just did a CLE on a continuing legal education class on appeals, which are really fascinating, something that we don't always do. As like as a family law attorney, I did one appeal once with my partner only because I wanted to do that once, and I don't think it's a common thing. Typically, we send out our appeals to people like Michael, who wants to do them and who seems to enjoy that. Seems to enjoy being beat up in oral argument. Whether it's really formal, I did not find it as fun at all, but Michael seems to like it, so we're going to ask him some questions today. We did just again do a CLE on this, but we also wanted to go take it a little further. But first of all, michael, what is an appeal?

Michael:

An appeal is simply asking a higher court to review one court, another court. The best way to explain this is say you have a lower level court, a trial level court, the Superior Court here in Arizona. You get a decision from them. You want it to be reviewed by a higher court. That's the appeal process.

Launi:

Okay, so if you don't like it, can you just do it. If you just don't like it, you're rolling, or do they? Will they take it?

Michael:

Yes, for a period of time, barring if there's not any jurisdictional defects or any other kind of defects. Yes, they'll take it. The outcome probably won't be what you're looking for, but but they'll that you can go ahead and do it. Yeah.

Launi:

Yeah.

Michael:

All right Appeal.

Launi:

So, and when does it? When does it typically get done, like when when do you do an appeal?

Michael:

So typically, if if are you talking about if a court issues the decision you don't like, that's right, yeah, like you have a final order. So you get a final judgment, which would be a judgment that disposes of all the issues in the case. Then you have a 30 day window that opens from there, in which you have time to file your notice of appeal with the court of appeals.

Launi:

You don't.

Randi:

What was that?

Launi:

What if you don't file?

Michael:

it in time. You don't file it in time. If you're outside the time window, the court of appeals would not have jurisdiction over it. So your appeal time is run and you are stuck with the decision that was rendered.

Randi:

Yeah.

Michael:

I helped us file a court, yeah.

Launi:

I have to say I do like how you, how you say that because you're like they don't have jurisdiction and when you don't have jurisdiction you just you don't get to touch stuff, and so I like how you say that, as opposed to you know, you can't go like begging the court for forgiveness and because they don't have the jurisdiction, they're not going to do it.

Michael:

That's right. Jurisdiction is a at least in the general appeals process is statutory by nature, so it's not there's no discretion for the court of appeals there. That's either they have jurisdiction or they don't.

Launi:

Okay. So let's say, let's say you think that there might be an appeal and really I mean, I guess you should probably treat every case like there could be an appeal, right? So what are some chances? What are the best ways to improve your chances of winning an appeal?

Michael:

So, at the trial court level, the best chance of, or the best way to improve your chances assuming that there may be an appeal coming down the pipeline would be to first develop your record, and by that I mean make sure you make all the arguments that you need to make, present all the issues that need to be presented to the trial court, cite all the law, make all the arguments you need to make, get all the important evidence in a trial, and that's how you build your record.

Launi:

That's an example of preserving the case.

Randi:

Well, I think there's making a record.

Randi:

Yeah, there's multiple layers to it, right? So the Court of Appeals is going to have the ability to not only see the record, which means think of it like everything you see on ECR. That's kind of what they're getting, right. So when you file your pleadings, your motions, your pre-trial statements with the court, they assume that a higher court's going to review those and see, you know the contents of those arguments, the things that you're saying. But then, more importantly, out trial you know, because a transcript will be forthcoming to the Court of Appeals is that at the trial court level, when you are in litigation, you're making the arguments that need to be made.

Randi:

And there are a lot of times where you'll, you know, kind of hear, if you're watching or if you're on the other side you'll hear people say, you know, like, where they'll raise an objection and the court, you know, overrules it. And then you'll hear the attorney say, well, I need, you know like, I need to make an argument to preserve the record for purposes of appeal, right, so, like, just because you're going to overrule it, I need 30 seconds to kind of give you my argumentative spiel, so that way, if I do take it up on appeal, it's kind of like this idea that people were put on notice that this had the potential to be a problem.

Launi:

It's like that.

Randi:

Oh, go ahead.

Launi:

That's an interesting point, because so are you saying that that if oftentimes we just say objection and we might just say one thing, objection four. But in order to preserve the record, if there's five objections should you say all five objections, or does it matter?

Randi:

I think it depends what it is. I mean you're going to know going into your trial, you know, especially, a family court. You know here in Maricopa County with you know the Hayes V Gamma, the best interests of the children. You know everything's coming in for the most part, right. And so I think it's going to be more about your anticipation that if the court lets this in the effect that it can have on the ruling whether it's testimonial stuff, whether it's a witness, whether it's evidence, then so that you're being prepared to make an argument in that limited circumstance. I am not giving the suggestion that every time you raise an objection that is overruled, that you should give a 30 second speech as to why that is improper. I think you will only irritate the court because there's strategy in why we raise objections in trial. Sometimes you do it just to do it to get the attorney off, beat, to fumble somebody to keep something out. You know that's coming in, but what does it really matter, right? So I think, raise as many objections as you can.

Randi:

You know judges don't like speaking objections, but if there is an instance in where a record needs to be made, there may be a situation to do that Like if you're say hypothetically at an RMC when you're setting a final trial and you say I want a full day and the judge says I'll give you three hours and you say okay, your honor, I'm telling you we need a full day, three hours isn't enough time.

Randi:

And then you get you know closer to trial and you file a motion to say I need an extension of time, this isn't enough time. The court denies that request, that when you're at trial you say your honor, we need additional time. Your request counsel is denied. You know that's like the ways that you're preserving the record because if that's something that becomes important in the end, you've taken all the steps that you need for that to be an argument where you're saying I said that it wasn't going to be enough time. You know that's kind of like a really sort of like lame example, but that's like kind of the easiest way to look at it.

Launi:

Yeah, but I think it's actually a great example because it happens a lot. It happens a lot, right, that's the one thing else, and you can't get your experts in, okay. So when you were talking, you did talk about transcripts, and I know that you have to get the transcripts printed, but who does that? And you have to share them.

Michael:

So what happens is that you get, you have to order them from the FTR or, and then you contact a certified court reporter transcript company and they will go ahead and transcribe that for you and then sign an affidavit saying that the true and accurate and all that kind of good stuff.

Randi:

So then go ahead. I'm going to ask the question I bet you are, which is who's in charge of that? How does the court of appeals get a? When does it need to be done by? Like, give more detail on that.

Michael:

So the that responsibility of ordering the transcript is lies solely with the appellant. Unless the the appellee believes that there's some some other hearing that or some other transcript that needs to be provided. For context, which is discretionary, the responsibility of ordering and providing the transcripts is on the appellant. Typically, they do that in while the case is just getting going. You file them with the court of appeals, you provide them to the parties and that's one of three main components to the record that we were just talking about, which would be your transcripts, the exhibits that were submitted at trial and all the filings that were submitted to the court during the proceedings below.

Randi:

I think to add on to that too. Just to be clear, when we're talking about ordering transcripts, we're talking about you're ordering them from the hearing ie that minute entry that you're appealing. If it was, this is the final trial on our divorce and I get the divorce decree and I'm dissatisfied without it, I want to go up on appeal. I'm ordering the transcripts from that hearing, just to be clear on that. And then if you're an attorney who does these appeals on a flat fee, we commonly do not include the transcript price as part of the cost that we charge to the client. We see it separate because anticipate that it's going to be probably I mean a lot of. It's going to depend on length of hearing, which means the amount of time that your court reporter takes to transcribe, but I'd say you're looking at a grand to three grand again, depending on time. It's a pretty expensive side addition that needs to be integrated into cost and you're going to have no idea what that cost is until the transcript is done.

Michael:

Absolutely. And then check your local rules, because they will tell you when you need to file. Typically, you have to file a notice with the court of appeal saying, hey, I've ordered the transcripts, and then, once you get them, the rules will tell you how to distribute them, when they have to be submitted by, and so on. So check them out.

Launi:

What if somebody files? What if you both file, like at the same time, like you both file a notice of appeal and so there's not necessarily a counter? Does that just automatically become like a counter claim or Right? Like, let's say, on day 30, you file one and I file one, and we both didn't know that the other person was filing it at that moment, or we both assumed that you hadn't, so we hadn't, and so now there's a.

Randi:

I assume that the court of appeals is going to designate someone as the appellee in the appellate, and I would probably just go off of that.

Michael:

Yeah, and depending on the nature of the claims, like if, let's say, we have party A and party B and they both file at the same time, like are they raising the same exact claims? Which probably isn't likely. But in that sense, I think you just consolidate it and designate one party as the appellee and otherwise it would probably adopt one case number and then designate somebody as, or treat one of them as, a cross appeal.

Launi:

The first case number, but then that person's going to be the one responsible for having to pay for the transcript. That's where I was going with it I'm trying to get out as cheap as possible.

Randi:

Yeah, and it very well. Maybe, I don't know we've never run into that situation, to be honest. I mean, it's kind of like the idea that if two petitions for dissolutions are filed at the same time, somebody's the petitioner and somebody's a responded and a case number has to be selected. I know, I think in that realm they usually there was like for a while, like you know whoever filed first, but then it was like the lower case number, and so I assume here whoever files first is going to be the one stuck with it.

Randi:

Quite candidly, if you're filing an appeal, buckle up for 20 grand. I don't know how to help you if you thought that this was going to be inexpensive. It's an expensive process and so a $1,200 transcript is like, right, like is the least of your concern. So I think that if you're an attorney advising an appeal, you need to go into it. It's like litigating. You need to go into it knowing you're paying 100% of your attorney's fees and if you get any of them back, congratulations Right. The same thing is on an appeal. You need to go into it knowing that if you're making the request to do the appeal, you're going to get pinched with some of these added expenses.

Launi:

All right. Well, that's. That's some really interesting information. I appreciate you kind of updating us on that and talking to us about it. I think appeals are very scary for most people and really probably most attorneys. So if anybody out there needs somebody to take their appellate case, you know, go on over to Burgraft, Tash and Levy and and have Michael do it. Michael is Michael, the only one in your office that does it. Yeah, go hit Michael up.

Randi:

He doesn't have a writing. We all hate to write, so well, yeah, that's.

Launi:

You know, I think a lot of lawyers do we like we go there to argue, right? We went to law school so that we could go to Fort and go to trial and something like that.

Launi:

Yeah, build a case, and although we do appreciate mediation I mean mediation is a really good thing to fall back on at times, or actually not even to fall back on, but really to as our first step. Right yeah, and actually Randy just talked about that in a in a division of asset and debt CLE that we did. Now we did do a longer CLE on a continuing legal education course or a legal education course on appeal, so you can check that out at our website and then if you have any questions, both Randy and Michael's contact information will be linked and feel free to reach out to them if you've got some some questions. And then if you want to become a speaker or want to appear on our podcast, please reach out to me. My email address will also be linked. So thank you so much. Thanks, guys, for being here. Appreciate it.

Michael:

Thank you.