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What is an Appeal All About?
What is the appeal process all about?
Most people appeal their case because they simply are unhappy with the judge's decision and they want a "do over." However, it is important to emphasize that just because you are unhappy with the judge's decision this is not enough to justify filing an appeal.
Where are appeals filed?
All appeals are filed in the Appellate Division. The appeal court is an intermediate court. The next highest court is the New Jersey Supreme Court. This Appellate Division is bound by rules and regulations called standards of review. These standards limit the court's ability to modify or change the trial court's decision.
What are my odds of winning if I appeal?
On a general yearly average the Appellate Division affirms 74% of matrimonial appeals? It is important to emphasize that an appeals court will not substitute their opinion for that of the family court. There has to be a mistake of law for a trial court's decision to be reversed.
What is the general rule(s) that the Appellate Division reviews?
The major provision is Rule 2:10-1. Here, the court analyzes whether the family court judge could have been reasonably reached on the evidence.
What are the drawbacks of filing an appeal?
The major drawback of an appeal is that it is very expensive and time consuming. The cost of the transcripts alone is thousands of dollars. The filing fees are several hundred dollars. Moreover, most lawyers require sizable retainers paid up front before working on an appeal. The appeal process is a very slow and tedious process. In many cases an appeal is not a cost-effective process. In summary, even though you have some serious reversible errors in your case, the cost of an appeal may just make it not worth the effort.
How long does it take to file an appeal?
The average time span for an appeal is 12 to 14 months from the filing of the appeal to obtaining the final decision. The time frame of an appeal depends on how quickly the transcripts are obtained, and how extensions were obtained to submit the briefs. Moreover, if the parties engage in the Civil Appeals Settlement Program then the time frame of the appeal will be increased.
How does the Appellate Division operate?
The Appellate Division is broken down into eight different panels. When all of the briefs are filed with the court, then the case will be assigned and sent to a panel. A case is assigned to either a two or three-judge panel.
What is the most important part of the appellate process?
The most important part of an appeal is submitting a "killer" brief. In most of the cases, the ultimate decisions will rest upon the quality of the brief that you submit to the court. Most clients believe that they can win their appeal on oral argument. However, this is a major misconception. The vast majority of the cases are won or lost based on the quality of the briefs.
What does the brief contain?
The briefs contain a procedural history and a statement of facts. This section is basically an outline of what happened in your case. The most important part of the case is the legal arguments. The legal argument is broken down into points. Each point has a heading. In the brief you need to tell the Appellate Division what you want them to do. This should be stated in each of your points. Moreover, you should also summarize what you want to be done in your conclusion. If the Appellate Division cannot figure out what you want form them, then you may not get it.
You also have the right to file a reply brief. Once you ex-spouse files a response to your brief, then most litigants will want to reply and try to "shoot down" their ex-spouse's arguments.
Do I also have a legal right to have oral argument before the Appellate Division?
Yes, you do. You have the legal right to request oral argument before the Appellate Division. However, you must file a form with the Clerk of the Appellate Division to request oral argument. At oral argument the judges routinely "grill" the lawyers. Oral argument is not as important as preparing a well thought out and detailed brief. However, for most clients it is very important to them to be able to "vent" their case to the Appellate Division by having oral argument.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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