Do I Appeal?  Going to a Higher Court.

Sometimes you get the bear.  Sometimes the bear gets you.  If you walk out of court with a decision that you aren’t happy about, you’re probably thinking about taking an appeal.  That option may not be as appealing as it sounds.

The first thing to know is that not all decisions are appealable.  Generally, you need to have a final judgment to take an appeal.  Temporary orders, procedural orders, or decisions that resolve only a part of the case are not appealable.  You may have to live with those orders until the case has been completed.

Appeals are not new trials, although they can result in a new trial.  In an appeal, a panel of judges will review the documents filed in the trial court, as well as the transcripts of any hearings, and read the appellate briefs submitted by both sides.  It will not hear or accept new evidence.  On rare occasions, the court will hold an oral argument, which is typically a one-hour hearing where each lawyer gets grilled by the panel.

When an appellate court reviews the decision of a trial court, it applies various standards.  For example, if your complaint is that the trial judge misapplied the law, the standard of review is the “right/wrong test.”  If your complaint is that the judge got the facts wrong, then you have a higher standard and have to convince the appellate judges that the trial judge was “clearly erroneous in view of the reliable and substantial evidence on the whole record.”  If the appeal is about a discretionary decision, for example, and award of child custody, the appeal will only succeed if the judges find “a manifest abuse of the family court judge’s wide discretion.”  Translation:  unless you are appealing based on misapplication of the law, you are probably going to lose. 

If you like suspense, you’ll love appeals.  Typically, it takes two to three years to get a decision.  Most cases are assigned to the Intermediate Court of Appeals, however a party who gets an unfavorable decision there can ask the Hawaii Supreme Court for a second look.  Most of these requests are denied, but they can make a long process even longer.

Appeals don’t stop the trial court’s orders from being implemented.  To do that, the appellant has to file a motion in the trial court for a stay pending appeal.  One of the factors that trial court considers is the likelihood that the appeal will succeed on the merits.  Convincing the same judge who just issued a decision that an appeal is likely to succeed is a tall order.  Fortunately, if the trial judge denies a stay, the appellant can ask the higher court for one.  However, it doesn’t end there.  If financial orders are at issue, the stay-seeker must provide security for payment in case the orders appealed from are upheld on appeal.  Generally, this means depositing a large sum of money with the Clerk of Court.  Sometimes one may also obtain an appeal bond, although they have been increasingly hard to find in recent years.

It goes without saying that appeals are expensive.  Court transcripts are not free.  The time that an attorney will spend in researching and writing a twenty or thirty page brief is rather significant.  Expect to spend fifteen to twenty-five thousand dollars pursuing an appeal. 

Most of the time, it is a wiser choice to live with a bad decision and move on.  However, in family law, there is another option for some cases.  Custody, visitation, child support and alimony are all modifiable whenever there has been a change of circumstances that would warrant a new order.  It may well be the better course to wait and see what develops, and then seek modification.



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