Mistakes of the Court (Under Construction)

Judges make mistakes. Appeals are the mechanism for correcting those mistakes. Whether you won or lost, those mistakes can be challenged in an appeal.

If you lost in the trial court, before you appeal, you need to consider when the judicial system permits appeals, the nature of the mistake, and what you can achieve on appeal.

If you won in the trial court, did you structure your case to defend your win?

In Colorado, generally only final orders and judgments can be appealed. The definition of a “final” judgment or order is that it decides all the issues in the litigation, leaving nothing further before the court. In civil cases, that usually means that a money judgment has been awarded or the case has decided against the plaintiff. Sometimes, some of the issues may be decided or dismissed along the way before the final judgment is entered. Those issues may be included in an appeal of the final judgment.

Appeals from final judgments must be filed within 49 days from the date of the judgment. Although that deadline may be extended is certain types of post-trial motions are filed, there are jurisdictional requirements as to timely filing and timely deciding post-trial motions that can trip up many litigants. So, it is advisable to make a decision and file within 49 days in most situations.

Sometimes you can take an interlocutory appeal. These exceptions to the requirement of finality are technical and have to be considered on the unique facts of each case to decide whether the case fits within an exception to the requirement of finality and whether it makes sense to pursue the interlocutory appeal. An example of a viable interlocutory appeal would be challenging denial of a preliminary injunction to prevent construction of a building when the claim is the building permit was improperly granted. Once the building is constructed, it is extremely unlikely that the legal challenge to the permit would result in an order requiring the building to be demolished.

Deadlines for interlocutory appeals are different from appeal of final judgments. If you consider an interlocutory appeal, you must act within 14 days.

There are four kinds of mistakes that judges can make:

1. A mistake of law.

2. A factual mistake.

3. A mistakes as to a mixed question of fact and law.

4. An abuse of discretion.

A mistake of law can mean applying the wrong law or misinterpreting the law. It includes interpretation of documents such as contracts. Did you argue the correct law and the correct interpretation in the trial court?

Factual findings are made based on the evidence, both documents and witness testimony, as to what happened. So long as there is some support in the case for factual findings, an appellate court will not change those findings. That means that even if one witness lied and the trial court believed that witness, it does not matter how many other witness testified to the opposite. However, if the trial court’s judgment is based on interpreting documents, that can be a characterized as a mistake of law.

A mixed question of law and fact involves establishing what happened, the factual findings, and applying the correct law to those facts.

Many decisions at trial are within the court’s discretion. These decisions will not be changed on appeal unless the appellate court considers that the conclusion was manifestly unjust or unfair.

Regardless of the type of mistake, the Court of Appeals will not change the result unless both the issue was “preserved” in the trial court, and the mistake resulted in substantial harm, e.g. it was not a harmless error. So, the challenge to the trial court order must establish that a mistake was made, the appellant raised the issue in a way that gave the trial court an opportunity to get it right, and that the mistake harmed the appellant.

If the nature of the mistake lends itself to an appeal, you need to consider the amount in controversy. In many cases, it is easy to determine that question – what’s the amount of the judgment or what did you seek in the trial? Then consider what is possible to get on appeal. Finally, you need to consider the budget for an appeal. If there was a trial or hearing, you will need a transcript. The cost of a transcript can run approximately $800 per day. The cost of litigating an appeal to the Court of Appeals can vary greatly, depending on the number and nature of the issues and the length of any trial.

Evaluation of all these factors – the nature of mistakes made, the number of issues, possible relief – takes investigation into the case. Consider a consultation to discuss and investigate whether an appeal is right for you and your case promptly so that you have time to decide and file within the deadline.

Preservation of Issues and Standards of Review

The Appellate Process

An appeal is started with a notice of appeal, filed in the Court of Appeals. The notice must be filed with 49 days from entry of the final judgment or order in a case. The notice itself does not develop the issues or arguments. Instead, it notifies the parties and the court that an appeal is being taken. The notice identified the parties, the order being appealed, and stated advisory issues in the appeal.

Within 14 days of filing the notice of appeal, the appellant must also filed a designation of record. This designation identifies all the materials that the appellant asks the trial court to send to the Court of Appeals to consider when it reviews the case. This is the time when the appellant must list any transcript of hearings or trial that should be included in the record. In addition to “designating” the transcripts, the appellant must also request the transcripts according to the procedures set out in Chief Justice Directives and local practice.

Once the record is transmitted and official filed at the Court of Appeals, a briefing schedule is set. The appellant files an opening brief, the appellee files an answer brief and the appellant may file a reply brief. These briefs are the heart of the appeal. They set out the issues, and argue the merits of the appeal.

Either side may request oral argument in the appeal. If there is oral argument, it is the only time that the lawyers appear in the Court. In the Court of Appeals, each side is allowed 15 minutes to argue. That time includes any questions the judges may ask.

A panel of three judges decide the case. They will not be assigned to the case until after the briefing is concluded.

The average time for the entire process is about 1 year. After the Court issues its opinion, either side may petition for a rehearing within 14 days. It is rare that an opinion is changed on a petition for rehearing.

After the Court of Appeals issues its decision, either side may petition for discretionary review – a petition for certiorari – in the Supreme Court. If the Supreme Court does accept a case, the same briefing process is applied. The Supreme Court always holds oral argument on its certiorari cases. Its process may take 2 years.