PLEASE NOTE: This blog is a bigotry free zone open to all persons, regardless of age, race, religion, color, national origin, sex, political affiliations, marital status, physical or mental disability, age, or sexual orientation. Further, this blog is open to the broad variety of opinions out there and will not delete any comments based upon point of view. However, comments will be deleted if they are worded in an abusive manner and show disrespect for the intellectual process.
Showing posts with label APPEALS. Show all posts
Showing posts with label APPEALS. Show all posts

Monday, May 22, 2017

RECENT APPELLATE COURT RULING DENIES FAMILY COURT LITIGANTS FUNDAMENTAL DUE PROCESS RIGHTS!



ENTITLED "COURT TIME IS VALUABLE, DON'T WASTE IT" AND WRITTEN BY ATTORNEYS ALEXANDERMAKES ZERO ATTEMPT TO ADDRESS THE PERSPECTIVE OF LITIGANTS, THE ARTICLE BELOW COPIED FROM THE CT LAW  TRIBUNE MAKES LIGHT OF THE FUNDAMENTAL CONSTITUTIONAL RIGHTS OF LITIGANTS.  
WE ARE WELL AWARE THAT DIANNE HART-D'AMATO HAD A LEGITIMATE CLAIM AND THAT THE OUTCOME IN THIS CASE WAS WRONG AND WILL CAUSE ONGOING HARM AND DAMAGE TO FAMILY COURT VICTIMS.
SEE BELOW:
"Courtroom time is invaluable, and particularly so in family cases. Courts only have so much bandwidth, and what exists must be maximized in the pursuit of justice. For litigants and counsel, courtroom time means having their "day in court": the chance to finally be heard by someone who can grant relief.

What relief can there be, though, when the system is clogged?
Connecticut's courts have long recognized the legal maxim that justice delayed is justice denied. For a parent awaiting a determination of custody (or even just waiting weeks and months to have a hearing) as long days pass without proper parenting time with a child, nothing could ring truer.
Time spent on the bench by a judge means time not spent writing decisions or attending to other judicial duties. Time spent in the courtroom may mean that a judge is forced to take other work home, at the expense of personal endeavors. It may mean that parties must wait longer to receive written decisions. In sum, such courtroom time should not be incurred lightly. Yet, our family courts must struggle every day with limited means to cull out meritless claims which suck up courtroom time.
The Connecticut Appellate Court has recently issued a guiding light to reduce bench time for family judges without offending notions of due process:  D'Amato v. Hart-D'Amato , 169 Conn. App. 669(2016). In D'Amato, a disgruntled litigant filed a smorgasbord of motions, including a motion to open the judgment, all of which the trial court denied without a hearing. Naturally, the party appealed, claiming that she was entitled to her day in court.
The Appellate Court in D'Amato shut down the due process claim as follows: "Pursuant to Practice Book §11-18(a) … whether to hear oral argument on motions in civil matters is a matter within the discretion of the court, except in limited circumstances, not relevant here, in which argument is a matter of right. … The trial court's decisions not to hold evidentiary hearings with respect to these motions were, by the rules of practice and case authority, within its discretion." Id. at 675-76. In a footnote, the D'Amato court stated that while "notions of due process include the opportunity to be heard … the defendant patently was afforded the opportunity to present her points of view in writing. Such opportunity satisfies due process." Id. at 689 n. 2.
The potential impact of this case for family courts is huge. For example, baseless motions to open can be denied without forcing a judge onto the bench — and without requiring incredibly expensive preparation by counsel for a needless evidentiary hearing. A judge could similarly deny associated claims to allow postjudgment discovery pursuant  Oneglia v. Oneglia , 14 Conn. App. 267 (1988). If the underlying motion to open is without any merit, it cannot have the "minimal indicia of merit" required to entitle the litigant to postjudgment discovery under Oneglia. Such a frivolous motion can be dispensed with expeditiously, thus avoiding a derailment of other proceedings in the case for months without just cause. This is but one vortex sucking up precious court time which D'Amato can help eradicate.
D'Amato reaches its result on the strength of the sometimes forgotten notion that a litigant's written submission can itself constitute due process. If a motion on its face does not entitle a party to relief, then why does a hearing have to be held to reach that same conclusion? Civil judges have much broader authority to decide matters "on the papers," without offending notions of due process. Surely due process is the same in both the civil and family context, as D'Amato indicates. Surely a family court judge's bench time is at least as valuable as that of a civil judge.
D'Amato, by itself, may not be enough to convert the backlog of time-consuming hearings into a neat pile of pleadings instead. Family law judges are no doubt hamstrung by Practice Book §25-34, which seemingly mandates a hearing on everything except discovery. In comparison, Practice Book §11-18 leaves it to the judge's discretion as to whether there should be a hearing, except for a limited class of motions — and even those only get more than a read-through only if additional requirements are met. A family court's hands are also tied with respect to many of the mechanisms that serve civil courts well to ensure that only meritorious claims reach the courtroom, such as motions to strike, requests to revise, and motions for summary judgment. Consider again the parent awaiting a determination of custody. Why should that be delayed for even a second while the court grapples with motions that fail to properly even state a claim?
Each short calendar day, the family judge is swarmed with cases marked ready. A mere fraction are actually reached; of those, a fraction will conclude on that day. The unfortunate remainder are destined for a certain date, only adding to the backlog. On that certain date, numerous contenders for court time will show up, likely to find that the court may be double- or even triple-booked. Even the eventual "winner" of court time on that day may find valuable hours eaten up on their court date while it is figured out which case should be heard. The resulting waste of court time and counsel fees for needless hearings must be stopped, if the Connecticut family courts are to be as effective as they can be. D'Amato  is a worthy companion to the Appellate Court's approval of a court's authority to limit the filing of redundant, vexatious, frivolous, and abusive pleadings in  Strobel v. Strobel , 92 Conn. App. 662 (2005). D'Amato is a step in the right direction of strengthening the authority of a family judge, but it is not enough.
Until Practice Book §25-34 is more closely aligned with §11-18, the full impact of D'Amato will remain unrealized. Similarly, the family court should be given greater tools to manage their dockets, and allow for the elimination or revision at an early stage of frivolous claims — at the very least to the extent available to a civil judge. Practice Book §1-25, addressing sanctions for frivolous claims, is a recent and relatively unexplored addition to the court's quiver of options. Perhaps it can grow to rival Rule 11 of the Federal Rules of Civil Procedure, which serves as a famous deterrent to the filing of frivolous claims in federal court. In doing its extraordinarily important job, the family court can certainly use all the help it can get."

Thursday, March 12, 2015

NEW CANAAN ADVERTISER REPORTS MICHAEL NOWACKI WINS APPEAL, IS VINDICATED IN APPELLATE COURT DECISION!

Aaron Marsh of the New Canaan Advertiser states as follows:
"New Canaan resident Michael Nowacki claims a trial court violated his U.S. Constitutional rights in two 2012 convictions of him it reached, and the Connecticut Appellate Court has now said it agrees.
In a decision published Tuesday, March 10, in the state’s law journal, the Appellate Court reversed one of Nowacki’s convictions and ordered a retrial for the other, finding in the latter that the trial court violated Nowacki’s rights to present his defense — which he did during the trial himself, without retaining legal counsel.
The Advertiser is now asking what no news outlet thus far to report on Nowacki’s successful appeal yet has. In the charge for which the Appellate Court ordered a new trial — where the appeal judges’ argument largely hinges on one witness not being called and Nowacki’s own attempted, related testimony being limited — what would that witness have said about a key legal point of this case?"
For more information on this article, please click on the link below:
http://ncadvertiser.com/46563/appeals-court-the-question-they-quashed-at-nowackis-trial/

Monday, March 2, 2015

MICHAEL NOWACKI WINS APPEAL!

For those of you who are interested, Michael Nowacki won his appeal and the link to the decision is below:

http://www.jud.ct.gov/external/supapp/Cases/AROap/AP155/155AP196.pdf



Sunday, September 28, 2014

NEW 2014 EDITION OF HANDBOOK OF APPELLATE PROCEDURE AVAILABLE!

For those of you who are interested, the CT Judicial Branch recently updated the Handbook of Appellate Procedure and is now available online.  For the link to the new Handbook, see below:


http://www.jud.ct.gov/Publications/Handbook_Ap_proc.pdf

Tuesday, February 11, 2014

CATHY SLOPER POSES IN DRAG AT THE APPELLATE COURTHOUSE TODAY!


COALITION MEMBERS STAND SHOULDER TO SHOULDER BEFORE ORAL ARGUMENT!

From left to right, Hector, Susan, Cheryl, and Elizabeth!

CATHY SLOPER POSES WITH COALITION SUPPORTERS JUST BEFORE SUSAN SKIPP'S APPELLATE COURT ARGUMENT!

From left to right, Cheryl Martone, Cathy Sloper, and Elizabeth A. Richter!

CATHY SLOPER POSES BY THE PICTURES OF APPELLATE JUDGES AT THE APPELLATE COURTHOUSE!

Cathy Sloper takes time off from her writing for some courtwatching!

THE INTERIOR OF THE APPELLATE COURTHOUSE FROM THE SIDE!

The building's interior gains a kind of 1920s glamour from its very high ceilings and the dignified drapery!

INTERIOR OF APPELLATE COURTHOUSE WHERE JUDGES HEARD SUSAN SKIPPS ORAL ARGUMENT TODAY!

Animal Rights Activists in front of us wait for their case to be heard!

APPELLATE COURTHOUSE WHERE JUDGES HEARD SUSAN SKIPPS ORAL ARGUMENT IN HER APPEAL TODAY!

Sun was a little bright to the right!  Hope it shines truth into the Courthouse!

Tuesday, August 20, 2013

YOUR HONOR, I OBJECT! PRESERVING THE RECORD FOR APPEAL!

I have talked about how important it is to speak up and object if anything goes on during a court hearing that you believe is a violation of your legal rights. 
 
You have to do this even though a judge might try to intimidate you and try to prevent you from speaking up by lecturing you about not speaking out of turn or telling you that such objections are unnecessary. 
 
It is always important to object. 
 
It is important to object because you might actually alert the judge to a problem right at that moment.  The judge might not respond immediately, but could change course at some point later on during the hearing.  It is rare, but I've seen that happen. 

Raise It or Waive It:
 
The bottom line, though, is that if you are thinking about taking the next step and going to appeal, at the superior court level you have to make sure you have brought to the judge's attention the issues you intend to raise later on appeal. 
 
Appellate Court reviews the record in the case to see whether there are legitimate grounds for appeal.  If you haven't placed your concerns on the record in pleadings, motions, or exhibits presented to the lower court or in your oral presentation to the court reproduced in transcripts of the trial, then you will not be able to appeal the ruling in your case. 
 
As the saying goes, "raise it or waive it." 
 
You can waive your right to object to an issue simply by going along with a ruling without raising an objection. 
 
To make sure you have a record of everything that took place in your case, here are some suggestions:  
 
Side Bar Conferences or Meetings in the Judge's Chambers:  
 
Such meetings are a classic way that important information ends up off the record.  If the Judge makes rulings--for example, on the admissibility of evidence, in meetings like this that are off the record, it will be almost impossible to appeal those decisions. 
 
Therefore, you have to find a way to put them on the record.  The best way to do this is to insist that there is a court reporter during the entire meeting. 
 
If that is not possible, make sure that once you get back in court you put everything that was said on the record by making mention of them once the hearing resumes. 
 
You can also file a motion for reconsideration or a proposed order in which you summarize the content of the meeting so that there is a written record of what was said in the file. 
 
Evidentiary Issues:  

There are two ways evidentiary issues become significant.  Either you tried to get an exhibit accepted and the court denied you, or the opposing side submitted an exhibit and it was accepted over your objections. 
 
In both circumstances, you have to take action if you want to preserve the issues for review by the Appellate Court. 
 
If the judge refuses to admit your evidence as a full exhibit, In order to preserve a claim to have it admitted, what you have to do first is object, and second you have to make an "offer of proof". 

Offer of Proof:
 
An offer of proof involves explaining what the excluded evidence is and what it would show if the trial court allowed it to be admitted. 
 
If you don't provide this offer of proof, the appellate court will not be able to understand what the evidence was and why the evidence  was important to the case. 

Get Your Evidence Marked For Identification: 
 
Furthermore, even if the excluded document does not get admitted as a full exhibit, you should make sure that the document is marked for identification so it will be included in the record and the Appellate Court can later determine if it should have been accepted as a full exhibit after all.
 
Likewise, if you are attempting to exclude your opponent's evidence, you should make an immediate objection to that evidence and state the exact grounds of your objection, i.e. "relevance", "hearsay", "misleading".

Get a Specific Ruling From the Judge: 
 
Make sure that you get a specific ruling from the judge in regard to the objections you raise.  Watch out for a situation where the judge says he won't admit the evidence now, but might admit it later.  In these circumstances, unless you make continued efforts to submit that evidence, it may end up being an issue that is considered waived.

Alternate Theories in Your Case:
 
Keep in mind that if you have any theories of your case, the time to raise those theories is immediately during the trial.  Appellate Courts only review old theories of a case, not new ones.

Objecting to the Memorandum of Decision:

 Furthermore, once the Memorandum of Decision comes out in your case, make sure you raise concerns about any omissions, inaccuracies, or ambiguities in the decision in a timely fashion, otherwise, again, if you don't raise it, you waive it. 

Assumptions in Appellate Court:
 
Keep in mind that the Appellate Court operates with the basic assumption that the trial court ruled correctly.  In order to overcome that assumption, you have to have a solid argument that is based upon the record.  If you have not created an adequate record, you will simply waste everyone's time and lose. 
 
Of course, most of us are self represented parties.  Most of the time we lose simply because the judicial system refuses to take us seriously.  However, at least if you take these very simple, straightforward steps to preserve the record for appeal, you won't make a fool of yourself and whatever small chance you have will be maximized.


RELATED ARTICLE:

http://divorceinconnecticut.blogspot.com/2010/09/excuse-me-could-you-say-that-again.html

Saturday, May 18, 2013

MOLLY DOE #1'S TESTIMONY AT THE MARCH 25, 2013 51-14 HEARING BEFORE THE SUPREME COURT


The next one is Molly Doe No. 1.

               (Pause in the proceedings.)

               CHIEF JUSTICE ROGERS:  Good morning.

               MS. MOLLY DOE NO. 1:  Good morning, Justices.  Thank you for allowing all of us to have this opportunity to address particular issues that we feel are most pressing.  This morning I’d like to discuss a review of the automatic appellate stay that is addressed in the Connecticut Practice Book.

               Connecticut Practice Book Rule 61-11 states that:  Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired.  If an appeal is filed, such proceedings shall be stayed until the final determination of the cause.

               And the Practice Book Rule 61-14 states:  The sole remedy of any party desiring the Court to review an order concerning a stay of execution shall be a motion for review under Section 66-6.  Execution of an order of the Court terminating a stay of execution shall be stayed for 10 days from the issuance of notice of the order and if a motion for review is filed within that period, the order shall be stayed pending decision of the motion, unless the Court having appellate jurisdiction rules otherwise.

               In practice, one family law judge in Stamford, Connecticut, is routinely ordering that if a party files an appeal of any issue, the 61-11 stay is hereby lifted prospectively.  That same family judge and at least one family -- another judge in Middletown is also continuing with proceedings where the stay had been lifted, but a motion for review is pending under 61-14.

               These judges do not believe that 61-14 applies in divorce proceedings which -- and in the Connecticut Practice Book still maintains that divorce proceedings are civil proceedings.  For an example, in a recent Stamford divorce case, a family law judge awarded an AMC a large sum of money without hearing evidence as to the financial circumstances of the parties.  The order was followed by the statement that should that party appeal, the automatic stay is hereby lifted.

               In another case, that same judge continued with proceedings where one party appealed her finding that the spouse was not in contempt for failing to produce a single, signed tax return for himself or for any of the multiple trusts of which he is a beneficiary -- of which he was an admitted beneficiary.

               The aggrieved party filed a motion for an appeal.  The judge lifted the stay.  The aggrieved party then filed a motion for review in following the Connecticut Practice Book rules.  The judge ignored the fact that the motion for review was filed and sent the case to trial. 

               Requested suggestions that -- the Practice Book Rule 61-11 should be amended to state that no judge may prospectively lift the automatic stay and Practice Book Rule 61-14 should be amended to clearly state that a motion for review suspends the lifting of a stay under 61-11 in all proceedings, including those involving divorce.  If this is already obvious, then family law judges should be trained in these Practice Book rules.

               Another issue I’d like to discuss is a litigant’s ability to listen to his or her audio tapes of her -- of proceedings.  The current procedure states that if any party or other individual challenges the accuracy of a transcript produced from an audio recording, arrangements may be made with the official court reporter for that person to listen to the audio recording and compare its contents with the transcript. 

               The official court reporter or a designee shall be present at all times that the audio recording is being played to the requesting person and such playing shall be at a time of mutual convenience to the person in the court reporter’s office.  The source of that document is the judicial branch audio access policy memo dated January 8, 2009.

               In practice, in --

               CHIEF JUSTICE ROGERS:  You can finish your sentence.

               MS. MOLLY DOE NO. 1:  Okay.  In all but one judicial district, litigants are permitted to listen to audio tapes of their proceedings.  Inexplicably, a different rule is followed in the Stamford family court.  The court reporter’s office refuses all requests to listen to audio tapes.  In order to hear the tape, the litigant must file a motion with the family law judge and hope for a favorable ruling.

               CHIEF JUSTICE ROGERS:  All right, Ms. Doe,

let’s --

               MS. MOLLY DOE NO. 1:  Okay.

               CHIEF JUSTICE ROGERS:  All right.  Thank you very much.   We’re going to take a very brief recess.

               MS. MOLLY DOE NO. 1:  Thank you. 

               (The Court stands in recess.)

FOR MORE INFORMATION ON THIS HEARING, PLEASE GO TO THE FOLLOWING LINK:

http://www.no-wackileaks.com/
  

Sunday, September 30, 2012

WHERE DO I GO FROM HERE?

I am proud to state that, after I wrote my last blog entry earlier today, I made considerable progress on the document I've been trying to get done.  Something about writing a blog seems to help grease the wheels of inspiration. 
 
Right now I am submitting my final petition to the Appellate Court to see if the CT Supreme Court will consider my complaints.  My guess is that they will not consider them because they haven't considered them from the moment I walked through the door of Family Court. I mean, why should the light of common sense ignite at this point in the game?
 
Coming from a family of teachers, as I do, it makes me shake my head to see such a stubborn group of people like Judges who set a course in a particular case and no matter how bad the course is that they have established will stick to it to the bitter end.  One of the cornerstones of intelligent thought is the ability to reconsider, the ability to reset the course based upon new information, the willingness to see things from more angles than one and to tolerate grey areas. 
 
Of course, if there is one thing I am clear on, it is that Family Court judges can't stand intelligence and they can't stand intelligent people.  In the course of trial, if a judge tells you that you are intelligent, you know that you are in a lot of trouble with your case. 
 
I am preparing right now to consider the steps I will need to take once my petition gets turned down.  Once that happens, where do I go from here? 
 
According to the absolutely last page of the Handbook of Appellate Procedure, page 25, if you are denied a petition to the Connecticut Supreme Court, you can immediately file a petition with the United States Supreme Court.  I have to say that I've been told this before repeatedly, and it was only until today that the news sank in. 
 
This is a situation just like monopoly.  Once you are turned down by the State Courts do not pass go, do not collect $200, do not go to federal district court, skip them all, zip around the board and go all the way to Washington, D.C. and check your complaint out with the very highest court in the land.  Permission to do this is granted by 28  U.S.C. Sec. 1257. 
 
You can appeal to the U.S. Supreme Court not only from an Appellate Court denial of a petition to go to the CT Supreme Court, if your petition to the Supreme Court is accepted, but your case is denied on the level of the CT Supreme Court, you can also go directly the the U.S. Supreme Court.  
 
The only problem with this approach is that generally only 1 to 2 % of cases that go to the U.S. Supreme Court are accepted for consideration.  That is an absolutely miniscule number and a particularly discouraging one for litigants.  I can imagine the odds are even lower for self represented parties such as myself. 
 
One thing to keep in mind for those of you who are not in the least bit discouraged--and I am one of them--make sure you file a stay of execution so that any actions against you can be stayed until the result of your appeal comes in.  Thus, the Handbook says, "If a party wishes to obtain a stay of execution pending decision by the U.S. Supreme Court, that party may seek such a stay by filing a motion for a stay within 20 days of the appellate judgment." Practice Book Sec. 71-7. 
 
If your petition was denied on the Appellate Court level, you have to file your motion for a stay of execution in the Appellate Court.  However, if your case in the U.S. Supreme Court was denied, you have to file your motion for a stay of execution with the Supreme Court. 
 
And don't forget that deadline, please.  You have 20 days from the date of judgment or 20 days from the motion for reconsideration of the judgment, either one. 
 
The stay of execution will give you time to put together your petition to the U.S. Supreme Court.  Of course, it may be you don't want to go to the U.S. Supreme Court.  Maybe you want to sue the State through the federal court system.  I don't know.  I'm not sure if it is allowed. I will have to check into that.  Skipping federal court seems like a good idea, like you are taking the short cut to the top.  It seems really free and easy and like you would save a lot of money. 
 
On the other hand, it does worry me that you have a one shot chance and then you are done.  Then you face the bill of costs from the opposing attorney who says you have been such a problem you have to pay all the legal fees for your insistence upon taking the case to the finish line. 
 
At least if you start at the beginning with federal court you probably have a slightly better chance of succeeding that you'd have in the U.S. Supreme Court with their odds of 1 to 2 percent.  It certainly gives me a lot to reflect upon as I continue forward and submit my motion in the next few days.  Its a game of strategy and I have to figure out how to play it--move the pawn, the rook, the King, the Queen?  Whichever way it goes, I will have to take the path right from here to the end.

Thursday, March 1, 2012

OVERVIEW OF THE APPELLATE PROCESS

I had a reader ask me a question about Appellate Court, which prompted me to write this lengthy response.  After I looked at it, I thought, this is a great overview of the appellate process, so I thought I'd share it with you, my readers.  This is a step by step, simplified overview of how the appellate process takes place:

A.  Initial Filing:

Within 20 days of the final judgment, you file the Civil Appeal Form with the attached DS1 (expanded form of the case detail, i.e. list of pleadings, orders, and parties in the case)

Within 10 days of filing your Civil Appeal Form, you must hand in:

1) Preliminary statement of issues;

2 Preliminary designation of the trial pleadings;

3. Transcript order form (JD-ES-38) indicating that you have ordered transcripts of the entire trial.

4. A docketing statement

5. A preargument conference statement (if there is a self rep. party they don't usual move forward on preargument conferences, but that is beginning to change)

6. Draft judgment file-you do not file because it is not necessary in family court matter

7.  A constitutionality notice if the Connecticut statute you are challenging may be unconstitutional.

And a payment of $250.00 either in cash, credit card or a check made payable to the clerk of the Superior Court.

After all these items have been filed you will receive a letter from appellate court assigning you a docket number and a case manager who is ordinarily an attorney but they call them clerks.

B) Perfecting the Record:

At this point you begin perfecting the record for appeal, making sure that everything is accurate and clear before moving forward on your appeal.  To do that you:

1.  Obtain transcripts.  Of course, make sure you have a record of the trial available for the appellate court in terms of the transcripts you have ordered.

2.  Motions for Rectification, to correct any inaccuracies in the Memorandum of Decision or in any documents submitted for trial or in any motions, or in anything said in the transcript.  You have 35 days from the delivery of the last portion of the transcripts to submit such motions.

3.  Trial Court Memorandum of Decision which you are appealling:  Submit a copy of this to the Appellate Court, or make sure the Appellate Court receives a signed copy (by judge) of the transcirpt of the Oral Decision

4.  Motion for Articulation:  If you didn't understand any of the Trial Court Order that you are appealling or when the legal basis for the decision is unclear, ask for an explanation now in this motion.  A motion for articulation must be filed within the same time frame as a motion for rectification, i.e. 35 days from the delivery of the last transcript in your case.

5.  Motion for Review:  If you can't get an answer from the Trial Court after filing a motion for articulation and/or a motion for rectification, if the trial court simply ignores you, or denies your motion then file a Motion For Review asking the Appellate Court to force the trial court to respond to your motions.  Don't wait too long to file a motion for review if the trial court simply ignores you.  If the trial court answers, and is either unclear or wishy washy or denies your motion, you then have ten days to respond with your motion to review. 

6.  Record:  Just around this time, the case manager should begin putting together the record, or compilation of relevant pleadings in your case .  It is up to the case manager as to when he starts and finishes it, but you should get the finalized record at some point, and you can challenge it if it doesn't strike you as complete, or if there is a document in it that you wish removed.  Once you receive your copy of the record, you make 15 copies of it and submit them to the Appellate Clerk, and then you make a copy for all the other parties in the case and send them.

C.  Briefing:

While you are filing all your motions to perfect the record for appeal, you are also writing your brief.  You have 45 days from when the transcripts in your case are delivered in order to complete your brief.  If you need extensions of time on that, then you must submit those Motions For an Extension of Time.  Most of these requests for an extension of time are accepted.

Once you have filed your brief, the opposing side has 30 days within which to file their brief. 

Once the opposing side files their brief, you then have 20 days to file your reply brief.

D.  Oral Argument:

Once the briefs in the case have been filed, the case is then assigned for oral argument.  You will receive a small booklet in the mail listing the date and time when you should appear for Oral Argument.  You are not required to file any further papers at this point.

Ordinarily, during oral argument,  the Appellant gets 30 minutes, the Appellee gets 30 minutes, and then the Appellant gets rebuttal time.  But you should state that you wish to have rebuttal time at the beginning of argument.

E.  Post Judgment:

If the ruling goes against you , you can submit a motion to reconsider, petition to have your case go to the State Supreme Court, or go to Federal Court.

Deadlines:  Remember that meeting the deadlines is absolutely essential to your case, or if you can't meet your deadline, make sure you file a motion for extension of time or you could potentially completely wreck your case, particularly when it comes to the initial 20 day deadline within in which to even file your case.

And that is it.  Are there any special situations or exceptions which would lead you to deviate from this overview? Yes, and this is why you would review the Connecticut Practice Book carefully regarding Appellate Procedure and get your copy of the "Handbook of Appellate Procedure" which you can google and download from the internet for free or pick up a copy, again for free, at your Appellate Clerk's office.   

If you have any questions about what is going on in your case, you ask the case manager.  I have generally found these folks very forthcoming and helpful in responding to my concerns, if, on occasion more loyal to the system than to my interests.  But that would only be understandable, so you have to work with them knowing that's what you've got.

Usually it takes eight months or so before you begin to see the end of the road in an appellate case.  It can go on and on, particularly if you have a dim wit like the opposing attorney in my case.

Friday, January 20, 2012

THE STANDARD OF REVIEW, STRUCTURING YOUR LEGAL ARGUMENT!

I'm not sure what it is, but structure generally tends to escape me when it comes to my writing, and also when it comes to my life in a lot of ways, so when I first read through the section on "The Appellant's Brief" on page 15 of the Handbook of Appellate Procedure the instructions totally did not sink in.  Maybe that is leftover from the seventies hippie rebel in me!

As a result, my first brief had a section on the Standard of Review which, had anybody read it--and I sort of doubt any Judge did, since I lost--consisted of a jumble of pretty much as many standards I could think of.  I said, take these ten issues and consider them according to this whole bunch of standards that I pulled together from my reading on the subject. 

Well, ok, again, I guess I understand why no judge read my brief, as I suspect they did not. 

It was only in my most recent endeavors in Appellate Court, after I had the opportunity to read the brief of the opposing attorney in my case, that the light began to shine.  I have to thank that opposing attorney in my case.  Without her miserable and relentless responses to my motions and briefs, I wouldn't be the smart, intelligent, and forthcoming self represented party I am today! 

So this is what I figured out.  For each issue you present in your brief, you must state what particular factor the judges should take into consideration when they evaluate it, i.e. what Standard of Review would you like them to consider. 

Thus, the parts of a brief are as follows: 

1) Table of Contents;
2) Statement of Issues;
3) Table of Authorities;
4) Statement of Proceedings and Facts;
5) Legal Argument;
6) Conclusion. 

The Section on Legal Argument (No. 5) should repeat exactly each one of the Issues you listed in your Statement of the Issues (No.  2), provide the Standard of Review for each Issue, and then elaborate upon the case law or constitutional law that supports your legal argument.  So the sequence is:  I.  Issue #1; II.  Standard of Review; III. Legal Argument on that Issue.  Go to the next issue until you have repeated the process for each issue.  

This means that your issues cannot be compound.  Each issue should encompass a single idea.  Each idea should be considered according to a single Standard of Review.

According to the Handbook, "The statement of the standard of review is an opportunity to tell the judges hearing the appeal how you  believe they should review the actions of the trial court."  It helps to narrow down and focus the attention of the judges on the issues you would like them to address. 

The Standard of Review that you apply to the issues in your appeal can have a significant impact on the likelihood of your appeal achieving a successful result and so you need to be scrupulous in choosing the appropriate ones. 

You can choose from a broad array of Standards of Review, but the ones that the Handbook Recommends are as follows: 

A)  The "de novo" or "plenary" standard of review.  This is the standard you would use if the Trial Court simply violated the law or misinterpreted a particular statute in its decision in your case.  This is the best standard because it really means that in considering the issue the Appellate Court is not required to defer that much to the determinations of the Trial Court; 

B) The abuse of discretion standard of review.  This is the standard you would use if the Trial Court mishandled issues related to the management of the trial, i.e. scheduling, evidentiary rulings, etc. during the course of the Trial; 

C) The clearly erroneous, or plain error standard of review.  This is the standard you would use of it appears that the Trial Court made factual determinations which were simply wrong.  Remember, another term for a judge is "Finder of Fact" and everything that the judge states in his or her Memorandum of Decision is supposed to be a fact, so if you read through a judges decision and see that one of his determinations is not a fact, in your view, the Appellate Court should review that determination under the standard of "plain error".  Unfortunately, the Appellate Court tends to defer considerably to the Trial Court in regard to the decisions it made in regard to questions of fact. 

As you can imagine, if you specifically direct the appellate judges as to exactly the basis for how a determination should be made on each of the issues in a case, this makes things much easier for them. 

For more information on the structure of the Legal Argument in a brief for Appellate Court, see Connecticut Practice Book Sec. 67-4(d).