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Showing posts with label WRIT OF CERTIORARI. Show all posts
Showing posts with label WRIT OF CERTIORARI. Show all posts

Wednesday, July 13, 2011


Apparently, most of the time, if a judgment goes against you in trial court you can appeal the case in appellate court as of right.  This means you have a legal right to appeal.  However, if you lose your appeal, you do not have the right to appeal your appeal, i.e. take your issue on to the supreme court as of right.  So, if you get turned down on your appeal, you have to consider your options carefully.

One of your options is to request a reconsideration of your case.  A motion for reconsideration must be filed within ten days from the official release date of the decision you are challenging.  In addition, you must pay a fee, or obtain a waiver of the fee before giving it to the appellate court. 

The upside of this situation is you get an opportunity to have your issue heard again.  The downside is that, according to the Handbook of Appellate Procedure which appellate court clerks generally hand out for free to self represented parties and published in 2003 (so watch it, some of its content may be dated!), is that "they are rarely granted."  I'm not sure that anything has changed since then! 

Your other option, if you fail with your appeal and fail with your motion to reconsider is that you can approach the judges of the supreme court requesting permission to submit your case to them for review.  The document you present to the court in order to obtain permission is called a petition for a writ of certiorari, because you are petitioning to obtain a certification to allow your case to go to the supreme court.

So if you are listening here, this is the sequence when it comes to a lawsuit: 1. trial court; 2. appellate court; 3. supreme court.  After that, I believe you can go to the federal or circuit courts.  Someone who knows this for certain might want to comment. 

There are some important points to take note of in regard to the appeals process.  First and foremost, do not miss the deadline for your appeal, and once you fail in the appeal do not then miss the deadline for your petition for certification to the supreme court. 

Did you hear that?  Let me say it again, do not miss your deadline for appeal or for certification, because if you miss the deadlines, they will not be nice to you and let you get away with it.  In the vast majority of cases, if you miss the deadline, then baby, you miss. Sayonara! 

If your appeal with the appellate court fails, you have 20 days within which to file your petition for certification from the date in which the opinion is officially released, or from which the issuance of notice has been sent out indicating a decision has been made, whichever comes earlier.  Again, let me repeat.  20 days and twenty days only. 

BIG EXCEPTION!  That is, unless you file a motion for an extension of time in which to file, in which case you take the extension, or if you filed a motion which would render the judgment null and void, such as a motion for reconsideration.  Then the 20 day period would start when you get a judgment on that motion.  I know that is complicated, but see the Practice Book 2011 Sec. 84-4 if you need further clarification.  Oh, and remember those twenty days include weekends and holidays, unless the due date falls on a day when the appellate court is closed, in which circumstance you have until the next business day. 

But don't wait until then.  File your documents at least a day or two in advance just in case there are problems. 

Second, keep in mind that you can't really appeal a decision that is based upon the judge's discretion, or based upon the judge's understanding or interpretation of the evidence and the testimony.  A judge, particularly on the trial level, has tremendous discretion to made decisions as he or she sees fit. 

However, if the judge made a technical mistake such as allowing into the record evidence that is ordinarily considered inadmissible or in some way violating the rules of the practice book or precedent as established by case law, then you have a genuine chance at succeeding with an appeal.  I understand that most of the time appeals do not succeed, but if they match my description of what ordinarily constitutes an appealable case, you may actually get some positive results. 

The format for this a petition to the supreme court is established by the Practice Book 2011 section 84-5 so take a look at it.  The appellate court clerk will give you a sample petition for you to copy if you request it. Basically, it states the following:  that luckily, the petition, unlike a brief (35 pages) is only ten pages long and includes very specific requirements. 

It includes 1) what issues you wish to present to the court for review; 2. a statement of why the court should allow the extraordinary relief of certification; 3. a summary of the case; 4. a concise argument supporting your position; 5. an appendix including the ruling you are appealing from and; 6. copies of any motions you filed which would have stayed the appeals period; 7. a list of the parties including names, addresses, telephone numbers, fax numbers and, if applicable, the juris numbers of their counsel.  It also has to have a certification page affirming that the formatting of the petition adheres to the practice book and that a copy of the document has been sent to all of the parties concerned.

You are required to provide an original and 15 copies to the appellate court. Remember to get a stamped copy for your own records. 

The big advantage of the petition is that it is short and sweet.  It gets you to focus the issues and genuinely evaluate whether you have a case that is worth pursuing. You really have to get to your points and prove your points clearly and succinctly. 

Once you have submitted your petition, the opposing side has a chance to respond, and then it goes to the supreme court for a decision.  You don't have the opportunity to respond to your opponent's counter to your petition, which is a bummer, and you don't have a chance for an oral argument where you can further develop your arguments.  The judges just look at the material you have submitted and arrive at a decision. That process generally takes from six to eight weeks, from what I've heard.  And, as I've heard it said, it's not over until its over!