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.
