Essential Steps in an Appeal

The Colorado Appellate Rules (C.A.R.) set out the process for appeals to the Court of Appeals and the Colorado Supreme Court.

Although there are specific rules for appeals from lower courts such as County Courts, and various administrative bodies, we will deal below only with appeals from the various District Courts.

Appeals to the Colorado Court of Appeals

The Colorado Court of Appeals, with its twenty-two judges, is Colorado’s intermediate appellate court. The Court is divided into a number of three-judge “panels” which decide each case.

The Notice of Appeal. The first step is filing a Notice of Appeal in the Court of Appeals. The Notice must be filed within fourty-nine days of entry of the final judgment that is being appealed.

Designation of the Record. Concurrent with filing the Notice of Appeal, but not later than fourteen days later, we must file the designation of record.

This notifies both the trial court and the Court of Appeals what materials we want sent to the Court of Appeals for review of your case. When the record is designated, we must also separately request any transcripts which we want included in the record. Shortly after requesting any transcripts, the client will have to pay the estimated cost for the transcripts to be prepared.

The Record filed in the Court of Appeals. The record is due in the Court of Appeals not less than ninety-one days after the Notice of Appeals was filed. This is not a jurisdictional deadline and it can be extended for good cause. It is the Appellant’s responsibility to ensure that the record has been prepared and is timely sent to the Court of Appeals, and we take this very seriously.

The Briefs. After the record is officially filed, the Court of Appeals issues the briefing schedule. The Appellant has forty-two days to file an Opening Brief. The Opening Brief must be filed or the appeal will be dismissed.

The Appellee has thirty-five days to file an Answer Brief. Then the Appellant may file a Reply Brief within twenty-one days.

The deadlines for filing the various briefs may be extended by the Court on a showing of good cause. After the appeal is fully briefed, the case is assigned to a three-judge panel. These judges will decide the appeal based on the briefs, their review of the record, the independent research their staff provides, and the oral arguments (if any).

Oral Argument. Any party to the appeal may request oral argument, and that request is routinely granted. In the Court of Appeals, argument is limited to only fifteen minutes per side.

Opinion. The rulings of the Court of Appeals are issued in a document called the “Opinion.” The Opinion sets out a summary of the case, the facts that they believe are important to the determination of the issues of law, the law of Colorado which applies to those issues (or a legal decision which, by extension of existing law, should apply to the facts presented), and a ruling. There may be as many rulings and decisions in an Opinion as there are important issues presented for decision.

Not every Opinion is published in the official books of the court. The Court of Appeals makes a decision as to whether the issues presented and decided are important enough to the jurisprudence of Colorado to be worthy of publication. Thus, Opinions may be “selected for publication” or “not selected for official publication.” Our attorneys have ways to still see the unpublished opinions, and thereby see the reasoning and thought processes of the judges who rendered it. That helps us craft briefs and arguments which might best influence the judges.

For our purposes, the significance of selection for publication goes to whether to seek further review in the Supreme Court. A “published” case is considered more likely to be accepted by the Supreme Court for further review.

Appeals to the Colorado Supreme Court

There are seven Justices on the Colorado Supreme Court. They believe their mission is to provide stability and clarity in the law of Colorado, and where there is no law, they will “make law”.

The Justices never divide into various smaller panels, as does the Court of Appeals. They always sit en banc, which means they all sit together on every case they hear. And each Justice will participate in the writing of the Opinion, although they will appoint only one Justice to draft the Opinion for their review. Justices who significantly disagree with the reasoning and outcome of the case set out by the majority of the court may write a dissenting opinion, which will also be published at the end of the main opinion of the court.

There are different avenues to get to the Colorado Supreme Court from the lower courts.

Direct Appeals. One way is a direct appeal. The Supreme Court has original appellate jurisdiction over a number of narrow legal matters in Colorado. Additionally, when the actions of a lower court are so grievous so as to unfairly change the outcome of a case in an irretrievable way, there is a direct pathway to the Supreme Court to ask for relief. The court has discretion to refuse to grant relief, although it does grant relief on a number of cases.

Certiorari. The legal term “certiorari” derives from a Latin word which means “to inform”. In a Petition for Certiorari, our attorneys “inform” the Supreme Court of the errors that we believe that the Court of Appeals have committed, and we ask them to set the matter straight.

Apart from those few cases of direct appeal, most of the cases that go to the Supreme Court come up on a petition for certiorari review. Again, the Supreme Court is not required to accept the case. We craft a petition for certiorari so it has the best chance to persuade the court why it should accept the case.

If a petition for certiorari is granted, then the process of briefing and argument begins again. The schedule is quite similar to what we have described in the section above, regarding the Court of Appeals.

The Supreme Court almost always mandates oral argument. But with the Supreme Court we now get twice the time, thirty minutes per side, to convince the Justices of the rightness of our cause, and to better answer their probing questions.

The Opinions issued by the Colorado Supreme Court can overrule the opinions of all lower courts on any issues, and they establish binding law in Colorado.

Although it is exceptionally rare, it is possible in some cases to obtain further review in the federal system, to include the U.S. Supreme Court.