What Happens During an Appeal?

An appeal is not a re-trial of the case but an attempt to convince an appellate court that the trial court made a consequential error that demands correction. In reviewing the lower court’s determination, the appellate court will only look at facts presented to the lower court–typically through testimony or exhibits. An appeal is not a “do over” or a “second bite at the apple.”

Every appeal begins with filing and serving a notice of appeal. Almost all South Carolina family court appeals are filed in the Court of Appeals–the intermediate appellate court, one level below the Supreme Court. For most civil matters, a notice of appeal must be served within 30 days of the attorney (or pro se litigant) receiving written notice of the entry of the judgment or order being appealed. The notice of appeal must be served on all counsel of record and on the clerk of court in the county and court where the order issued. Once written notice that the order has been filed is received, this deadline can begin running before the actual order is received. While the appellate courts can be flexible on deadlines, this deadline is jurisdictional–failing to meet it prevents the appeal from going forward. It is possible for a litigant to actually first receive the order after the time to appeal has passed.

Within ten days of receipt of the written entry of the judgment, one can file a motion to reconsider before actually filing the notice of appeal. When one wishes to raise an issue on appeal, one must file a motion to reconsider when one has raised the issue to the trial court that the judgment/order fails to address. One can also do this when one believes the trial court has made an obvious error that it might be inclined to correct. One cannot use this post-trial motion to raise issues that were not previously raised unless those issues could not be raised at trial.

Filing a timely motion to reconsider tolls the time to file a notice of appeal, and that thirty-day period begins to run once one receives written notice of the entry of the order from the motion to reconsider. However filing an untimely motion to reconsider does not toll the time to file a notice of appeal. Many appeals are dismissed because an untimely motion to reconsider failed to toll the time to file a notice of appeal.

Within ten days of serving the notice of appeal, one must file the notice of appeal with the appellate court and one must also order the trial transcript. Court reporters are entitled to charge litigants for such transcripts and an attorney ordering the transcript is obligated to pay for the transcript once it is ordered. Thus litigants can be expected to provide their attorney funds sufficient to pay for the transcript–which can be hundreds or even thousands of dollars.

Once the transcript is received, the Appellant (the party appealing the lower court’s order) has thirty days to file an initial brief. This deadline can be extended once almost automatically and a second time relatively easily. Further extensions are rarely granted. The brief will contain the factual and legal arguments demonstrating the lower court’s error(s). It will cite legal authority (typically case law and statutes) and the factual record in the lower court. That factual record is limited to the trial testimony and trial exhibits (which can include records any party asked the lower court to take “judicial notice” of–consider–at trial). In arguing error, one must show that this issue was raised by the Appellant and ruled upon by the lower court. Along with the initial brief, the Appellant will file a designation of matters to be included in the record on appeal–a listing of documents considered at trial or pages of trial testimony that are referenced in the brief.

After the Appellant serves the initial brief, the other party–the Respondent–then has thirty days to file his or her own initial brief and designation of matters to be included in the record on appeal. The Respondent can obtain similar extensions on these deadlines. This brief responds to arguments made by the Appellant. After the Respondent serves his or her initial brief, the Appellant has ten days (again with extensions allowed) to file an initial reply brief and designation of matters to be included in the record on appeal. Reply briefs are not mandatory. They respond to arguments made by respondent’s brief that are not addressed in appellant’s initial brief.

After initial briefing is concluded, the Appellant will prepare a record on appeal. The record on appeal is a bound volume or volumes containing all matters listed in any party’s designation of matters to be included in the record on appeal. The record on appeal will be paginated and contain an index noting which items are contained at which pages. Fourteen copies and an original record on appeal will be filed with the appellate court. One copy of the record on appeal will be served on each party.

Each party will then turn their initial briefs into final briefs by adding references to the pages in the record on appeal in which factual allegations are cited in the initial briefs. Obvious typos can also be corrected. These are the only two allowable changes from the initial briefs. Final briefs are then bound and served on the appellate court and opposing parties.

The appellate court next decides whether to grant oral argument. Often it can take a year for the appellate court to make this decision.  For most appeals, the decision whether to grant oral argument is discretionary–the appellate court has the right to decide whether to grant it. One can petition the appellate court for oral argument if one wishes to have it.  If oral argument is granted it will be scheduled for a set time and place.  If it is not granted the appellate court will notify the parties when it will consider the appeal and will render a decision thereafter. Most decisions are rendered within a few months of consideration but there are cases in which it has taken a year or more for a decision to be reached. Such decisions, called “opinions,” will be in writing and will be available on the South Carolina Judicial Department website.

After the opinion issues, either party may file a motion for rehearing. That motion must physically be in the appellate court within fifteen days of the opinion issuing. This deadline is jurisdictional and the appellate courts cannot consider a late filing. If the appeal began with the Court of Appeals, a motion for rehearing is a precondition of asking the Supreme Court for review. The Supreme Court will only review issues that a party first asked the Court of Appeals to reconsider.

After the Court of Appeals issues a ruling from a motion for rehearing, an aggrieved party can file a petition for a writ of certiorari with the Supreme Court. This writ asks the Supreme Court review the Court of Appeals ruling. Such writs are rarely granted. If they are, a briefing and oral argument procedure similar to that described above goes into effect.

Given the complexity and work involved in appeals, few appeals are taken from cases in which the lower court’s errors were minor or inconsequential. An appellate court only reviews for errors committed by the lower court. It cannot rescue a party from errors committed by his or her own attorney or from failures to present helpful evidence or raise issues to the lower court. Appeals are worth pursuing only when there is a good argument that the lower court made a consequential error and the party seeking the appeal presented substantial information supporting his or her position to the lower court at trial.

A flow chart further explaining the appeal process is available here.