Appeals in Mississippi Divorce
In our Ultimate Guide to the Divorce Process, we stopped at the point where the chancellor has conducted the trial of your case in the courtroom and has written his decision — the judgment. Chances are, either you or your spouse isn’t happy with the judgment, and one of you is asking your lawyer, What now? For the purpose of this Ultimate Guide, we’ll assume that you’re the one who isn’t happy with the judgment.
What now? You can appeal. There are Long Appeals and Short Appeals, the difference being whether you want to take every single opportunity to get the result you want. At first blush, your inclination will be that, of course you want to make the most of every opportunity available. But there are reasons not to, namely time and money. Ideally, a short appeal from a family law judgment will take 15–18 months. A long appeal can take twice as long. As bad as a 15-month wait is, a 36-month wait — three years — is unbearable, especially if you’re trying to get an adverse child custody decision reversed. So there’s something to be said for saving time.
Also, the expense of a long appeal can be daunting. If your lawyer is billing by the hour, as most other firms do on appellate work, then every project that you add to your lawyer’s project list represents another check that you’ll have to write. In a long appeal, those projects, and those checks, can add up.
We ought to point out that we’ve coined the terms short appeal and long appeal. You won’t find them in any law books, and if you ask a lawyer about a long appeal, he won’t know what you’re talking about. But we’ve found in our discussions with clients who are contemplating an appeal that it’s helpful to distinguish between appeals where no stone is left unturned, versus appeals where the goal is simply to ask the appellate court to review the chancellor’s decision as speedily as possible.
In this Guide, we’ll list all of the steps that go into a long appeal and will mark the steps that you can omit if you’re pursuing a short appeal. If you’ve decided on a short appeal but see some steps that you’d like to include even though they’re not compulsory, you certainly can. Of course, the more steps you add, the longer and more expensive your appeal will be.
Attorneys and Attorneys’ fees
Before we dive in, let’s answer some FAQ about attorneys and attorneys’ fees as they relate to appeals.
Does my appellate lawyer have to be the same person as my divorce lawyer? No.
Should I get a different lawyer to handle my appeal than the one who handled my divorce? It depends. We know good lawyers who can handle a divorce but who have never handled an appeal and don’t want to. If your divorce lawyer doesn’t want to handle the appeal or isn’t experienced or comfortable handling appeals, then you should get a different lawyer. Certainly if you think your divorce lawyer wasn’t very good, you should get a different one to handle the appeal.
But if you have confidence in your divorce lawyer, and they’re comfortable handling appellate work, then the question is harder to answer. Don’t be shy about discussing the pros and cons with your lawyer.
The biggest advantage of keeping your lawyer is that they already know your case. They understand why testimony that wouldn’t stand out to the average reader was actually critical. They understand how the case was structured, how your evidence rebutted the other lawyer’s evidence, why exhibits were included or excluded. They saw what evidence interested the chancellor and what bored him. They were present in the chambers conferences with the chancellor that were in private and not on the record, and on and on. A lawyer who is new to the case will never understand what happened at trial in the same way that the lawyer who tried the case will understand it.
But that familiarity can also be the biggest disadvantage. It can be helpful for the appellate lawyer to not have any familiarity with the case because he will be reviewing the trial transcript with exactly the same mindset as the Supreme Court justices — knowing absolutely nothing about what the case is about, or who said what, or why the chancellor ruled as he did. Instead of being outraged at the injustices perpetrated by the other side and/or the chancellor, the appellate lawyer will view what happened dispassionately, just as the Supreme Court justices will. A lawyer who can view the case in the same way as the appellate judges has an advantage over the lawyer who can’t.
Can I get the chancellor to appoint a lawyer to handle my appeal for free? No, with one exception — if your parental rights were terminated against your will. We do not mean that you lost custody, we mean that the judgment says that you are legally not even a parent of the child. Only in that case, and if he finds that you are indigent, is there a strong possibility that the chancellor will appoint a lawyer to handle your appeal for free.
Can I get the chancellor to order my ex to pay my legal fees on the appeal? At the end of the appeal, after the appellate court issues its decision, you can ask for an award of attorney’s fees under limited circumstances. The problem is that the lawyer handling your appeal will almost certainly insist on being paid at the beginning of the appeal, rather than at the end. That money will have to come out of your pocket, not your ex’s. There are a few (very unusual) exceptions to this rule, but no, don’t count on your ex having to pay your attorney’s fees.
How much does an appeal cost? It depends on how your lawyer charges you. Most bill by the hour. The more complex the underlying issues are, the longer it will take (and the more you will have to pay) for your lawyer to clarify for the appellate court what happened at trial and why the chancellor made a mistake.
The most time-consuming project in the entire appeal will be writing the brief. Ask yourself how many hours you spent writing the best term paper that you ever wrote. Then compare that to the number of hours that you’d guess that the person who got the A+ probably spent writing their term paper. Which kind of term paper (appellate brief) do you want the Supreme Court to read in your case — the one you turned in, or the one that earned an A+?
Our point is that the more time your lawyer spends writing your brief, the better it will be. But since you’re being charged for that time, you must have an understanding with your lawyer at the beginning of his representation of you as to how much of his time you can afford. Be clear. Set limits.
Alternatively, some lawyers will not charge by the hour but will instead charge a flat fee. This means that you write one check at the beginning of the appeal, and your lawyer guarantees that he will handle your entire appeal without ever asking you to write another check. Obviously, that’s going to be a big check, but in the long run it could be cheaper.
We’re always wary about flat fees because of the concern that the lawyer will take the big fee, and then put in the absolute bare minimum of effort. Most clients don’t know the difference between a good appellate brief and a bad one, so these lawyers can get away with it. We’ll give the same advice for hiring and paying appellate lawyers as we do for hiring/paying divorce lawyers — Ask around. Know who you’re dealing with.
“Very little is needed to make a happy life. It is all within yourself, in your way of thinking.”
What You Can Appeal From — Final Judgments and Interlocutory Appeals
In the course of your divorce case, chances are that the chancellor will make several decisions and will file several orders. It’s unlikely that you will like every decision that the chancellor makes. It’s certainly possible that the chancellor will make a decision that you believe wrecks your case.
In most divorce cases, the biggest decision that the chancellor makes before he issues his final judgment is the temporary order. We discuss temporary orders at length in our Ultimate Guide to the Divorce Process. But here’s a brief explanation: Chancellors recognize that divorce cases take months, if not years, to litigate. While that litigation is taking place, people need structure — who gets the house, who gets the kids, what will the visitation be, who has to pay the bills, and on and on. In short, what’s needed is a set of orders that provides this minimal structure so that people can go about their lives while they’re waiting for the divorce litigation to conclude. These orders are only in effect until the chancellor enters the final judgment, so they are called temporary orders.
If you don’t like what the chancellor decides in his temporary order — the chancellor awarded custody to your spouse, or ordered you to pay too much child support, or whatever — can you appeal that order to the Supreme Court? Or are you stuck with it? The answer is that, in most situations, you’re just stuck with it. The general rule is that the only orders that you can appeal from are final judgments that are entered at the conclusion of the case. In fact, a final judgment is not merely entered at the conclusion of the case, it is the conclusion of the case.
This is not to say that a temporary order is the only decision that the chancellor will make while your case is pending that you won’t like. A chancellor can make any number of orders, some of which you will find disagreeable. He can order that your spouse doesn’t have to provide records that you think he should, or that he doesn’t have to pay bills that he ought to. The chancellor can appoint professionals to work on your case that you don’t want or refuse to listen to experts that he should. He can admit evidence that should have been excluded or exclude witnesses that should have been allowed to testify.
All of these decisions that the chancellor makes while the case is pending are described in the law as interlocutory. This terms means that, while it’s a decision of the court and is binding on the parties, it’s not a final judgment. While the case is pending, the chancellor can change an interlocutory order whenever he likes.
We could easily fill a page listing the interlocutory decisions that chancellors make in the life of a divorce case. As a general rule, none of them are appealable. You have to live with it and do the best you can until the chancellor makes the final judgment. Once the final judgment is filed, you can appeal and in your appeal include your complaint that the chancellor made bad interlocutory decisions throughout your case. But the Supreme Court won’t allow you to complain to it about your chancellor’s bad decisions until the final judgment is filed. In the meantime, chancellors in family law cases can make just about any interlocutory decision that they want to, and there’s very little that you or your lawyer can do about it.
There is one exception to this rule. You can file an interlocutory appeal, which as you may have guessed, is an appeal from an interlocutory order. Many lawyers will not even consider filing an interlocutory appeal because the Supreme Court grants so few of them that it’s not worth the time and effort (which are considerable).
To begin with, it’s a misnomer to say that you can file an interlocutory appeal. Actually, all that you can do is file a request (called a petition) with the Supreme Court asking permission to file an interlocutory appeal. The Supreme Court can deny that permission, and it usually does. When it denies permission, that’s the end of that, and you’ve just spent thousands of dollars for nothing.
If the Supreme Court grants permission, that’s still not a guarantee that the chancellor’s interlocutory order will be reversed. In fact, that’s not even a guarantee that the Supreme Court will consider the interlocutory order. There’s still a chance that the Supreme Court will dismiss your interlocutory appeal because it was “improvidently granted,”which is a polite way of saying that it wishes it had not granted permission. Whereupon, the court dismisses your appeal without deciding whether the chancellor’s interlocutory order was good or bad.
Toward the end of this Ultimate Guide, we will discuss interlocutory appeals in greater detail. The point to be made here is that, while this form of appeal is an available option, in most situations it’s not worth the time, effort, and expense.
The Appeal Before the Appeal
When the chancellor files his judgment, you’re allowed to ask him to reconsider the decisions made in that judgment. If the chancellor decided custody the wrong way, or awarded too much alimony, or too little, or whatever he did wrong, you’re allowed to ask him to take another look and correct his mistakes.
Chancellors are usually pretty open to fixing math mistakes or other computational errors. They are also usually open to adjusting visitation schedules to accommodate quirks of the parties’ schedules. For example, if Dad was awarded visitation on the first and third weekend of every month, but Dad has to be out of town for work on the first weekend of the month, chancellors usually won’t have a problem changing the judgment to accommodate this.
Chancellors are not so open to changing “big decisions,” like who gets custody or whether to award a divorce. There’s a fair chance that the chancellor will view your request to change a big decision as nothing more that your wanting to re-argue the same arguments that you presented at trial. Unless you can show a significant, outright error, it’s tough to get a chancellor to change a “big decision.”
Worse, there is always the concern that your request to ask the chancellor to change his decision will actually decrease the chances of winning on appeal. The best way to explain this is by presenting an example.
The law presumes that custody of a child should not be awarded to a parent who has perpetrated domestic violence. If a chancellor awards custody to such a person anyway, the judgment is supposed to explain why and to answer specific questions about why this person is being awarded custody even though he’s committed domestic violence.
Let’s say that this is what happens in your case. If you ask the chancellor to reconsider his decision in light of the law (as discussed in the previous paragraph), you would hope that the chancellor would change his decision and award custody to you. Certainly, the chancellor could do that.
Then again, the chancellor could simply rewrite the judgment to do a better job explaining why he awarded custody to your ex. This updated, improved judgment, which specifically answers all of the arguments raised in your request to reconsider the judgment, is now less likely to be reversed on appeal. In effect, your request for the chancellor to reconsider the judgment has the perverse effect of decreasing your chances of success on appeal.
In most circumstances, you are not required to ask the chancellor to reconsider the judgment. It’s usually a good idea to make the request anyway, because (1) the chancellor might grant your request, and (2) compared to the time and money you will spend on appeal, this is a comparatively easy step. But you have the option of skipping this step, so that you can go straight to your appeal to the Mississippi Supreme Court. In most situations, a request for reconsideration must be filed within 10 days after the judgment is filed, so if you’re going to file it, file it promptly. Our experience is that they add one to three months to the appeal and sometimes much longer. It just depends on how long it takes for the chancellor to schedule a hearing and rule on the request.
The order that the chancellor makes on this request is probably the last order that he will make on your case. After that, the divorce case is simply over, unless someone files an appeal.
We ought to point out that, even though the case is over, family law cases are never really over. Especially if children are involved, there’s a good chance that someone’s going to need to go back to court, maybe to raise or lower child support or alimony, or to change custody or visitation, or to force someone pay what they’re supposed to pay, or whatever.
When you’re asking the chancellor to change the terms of the judgment, that’s called a modification action. When you’re asking the chancellor to enforce the terms of the judgment, that’s called an enforcement action. You can read all about modification actions in our Ultimate Guide to Modification. You can read all about enforcement actions in our Ultimate Guide to Enforcement.
Modification actions and enforcement actions both presuppose the existence of a valid, binding judgment, one that needs to be modified or enforced. In contrast, an appeal presupposes that the judgment should never have been legally binding in the first place.
This is a big issue. As an example, in child support enforcement actions, we often see a father who wants to argue that the amount of child support never should have been set as high as it was. But it’s too late to make that argument — the time to make it was when he had the chance to appeal from the child support judgment. Since he did not appeal (or was unsuccessful if he did), the child support judgment is valid, and he’s stuck with it. In other words, the chancellor won’t even allow him to make the argument that the child support shouldn’t have been set as high as it was.
The bottom line is that if a chancellor makes a final judgment that you don’t like, the only chance that you will have to prevent that judgment from becoming a valid, binding judgment is through an appeal to the Mississippi Supreme Court. You cannot expect to change it by filing a modification action. We talk about this at greater length in our Ultimate Guide to Modification.
Are the Parties Required To Obey a Judgment While It is On Appeal?
Generally speaking, yes. But there are two caveats.
First, there is an often-overlooked rule which says that no action can be taken to enforce the judgment during the 10 days after it has been filed. This is known as a stay of judgment. The purpose of the rule is to give you time to file a motion asking the chancellor to reconsider his judgment or to file an appeal. The 10-day stay of judgment is automatic; you don’t have to ask for it. If you want the stay of judgment to last longer, you will have to ask the chancellor to keep it in place until he has ruled on your request asking him to reconsider the judgment.
Second, you can ask for a stay of judgment that lasts throughout the appeal. This rule is more well-known, but it is not as helpful. The problem is that most cases that are litigated in state court deal with money — car wrecks, contract disputes, personal injury, negligence cases, product liability, corporate disputes, debt collections — they are all nothing more than getting Party A (let’s call him “Able”) to pay money to Party B (let’s call him “Baker”). If Baker gets a favorable judgment against Able, Able has to pay money to Baker.
Since most lawsuits are fights over money, the rule that allows for a stay of judgment contemplates judgments for money. If Able wants a stay of judgment, what he’s really asking for is permission to not have to pay Baker, even though the judgment ordered him to. What Able really wants is to not have to pay the judgment — i.e., for the judgment to be stayed — until the appellate court has decided the appeal.
With this in mind, the rules say that if Able wants a stay of judgment, he can have one, automatically, even if Baker objects. All that Able has to do is post a bond with the chancery clerk. The amount of the bond is 125 percent of the judgment.
Family law cases are not often amenable to stays of judgment in the way that money cases are not. If you lose a custody case, how do you post 125 percent of the judgment? What is 125 percent of lost custody? Obviously, there is no such thing.
To get a stay of judgment in a family law case, you have to separate the parts of the judgment that require payment of money/assets from the parts that pertain to divorce, custody, visitation, and other non-financial issues. On non-financial issues, the chancellor can issue a stay of judgment if you file a motion asking him to. If you don’t like his decision on your request, you can ask the Mississippi Supreme Court to issue a stay of judgment.
On financial issues, there are two categories. First, judgments requiring payment of money/assets is more likely subject to the 125 percent rule discussed above. For example, if in the distribution of assets you are required to pay your ex $100,000, you should be able to suspend this if you post a $125,000 bond. Similarly, if you are ordered to pay your ex $10,000 as reimbursement for children’s expenses, you should be able to post a $12,500 bond.
But if the judgment is for payment of child support or monthly alimony, you cannot get a stay of judgment by posting 125 percent of each monthly check. Instead, you will have to ask the chancellor for a stay of judgment. It is entirely possible that he will not allow a stay under any circumstances. If you don’t like his decision, you can ask the Mississippi Supreme Court for a stay.
Getting a stay of judgment in a family law case is not easy. You will want to review the particulars of the situation with your lawyer to decide whether it is even worth the effort. In many situations, it isn’t.
If you do not have a stay of judgment in place, then you are obligated to comply with the terms of the judgment, even if it is on appeal.
THE BRIEF ON APPEAL
There are several purposes that your lawyer is trying to accomplish when he writes your brief. Obviously, the over-arching goal is to convince the appellate judges to rule in your favor. But how?
First, the lawyer has to explain what happened before the case even started. In a custody appeal, the discussion would be about the parties’ respective parenting. In a divorce appeal, the discussion would be about misconduct during the marriage. In a financial appeal, the discussion would be about the parties’ finances. You get the idea.
In his discussion of the facts of the case, the lawyer is bound by the evidence that was put into the record at trial. A lawyer can’t write that, “Everyone at Mr. Brown’s office knows that he’s addicted to pain pills,” even if it’s true, unless somebody gave that testimony at trial. If the testimony was never given on the record at trial, the lawyer can’t make the statement in the brief on appeal.
Each time that the lawyer recites a fact in the brief — nearly ever sentence — he has to list the page in the record where that fact was proved. He can’t simply say, “Joe married Tina on January 1, 2019.” He has to also refer to a page in the record where that fact was established. Showing the evidentiary basis for every single statement of fact is a painstaking process. But it’s the only way to show that the lawyer isn’t just making up facts — his client has already proved them in a court of law.
You are allowed to contest the chancellor’s fact-finding on appeal, but it is not easy. If the chancellor decides that Mr. Brown is not addicted to pain pills, you can still say that he is addicted, citing your evidence. But the appellate court is obligated to accept the chancellor’s version of the facts if that version is supported by credible evidence. That can be an enormous problem. If your case depends on your version of the facts, and the chancellor disagrees with that version, the appellate court not only may, but must decide the appeal on the basis of the “facts” as the chancellor reported them. The only exception is if the chancellor’s version of the facts isn’t supported by the evidence.
Second, the lawyer must describe the procedural aspects of the case. He will explain the important motions filed by the parties, the key rulings that the chancellor made, and what the final judgment said.
Third, the lawyer has to set out the applicable law, and then show how the law should have been applied to the facts of your case, in order to reach the result that the chancellor should have ordered. He should also explain why your opponent’s explanation of the law is mistaken.
One of the aims of the law is to see to it that people in a particular situation receive the same outcome in the courtroom as others in the same situation. For example, if a man that the chancellor found to be a good father was awarded substantial visitation with his children, the law developed that other men who were also good fathers should likewise receive substantial visitation with their children. Or if a wife was entitled to a divorce because her husband committed adultery, then other wives of other adulterers should also be entitled to a divorce.
When your lawyer writes about the law of your case, chances are that he will draw parallels between “people in the past” who were in the same situation as you and who received the outcome in the courtroom that (he argues) you are likewise entitled to receive. The “people in the past” he will refer to are people who in years past brought their appeals to the Supreme Court, just as you are doing now.
The Supreme Court’s written decisions on almost every appeal are regularly published. Lawyers scour those decisions so that they can argue that their client should be awarded the same outcome that the Supreme Court awarded to someone else in a case that it decided years ago. Your opponent’s job is to draw distinctions between that case from years ago and your situation now. They will argue, “No, that case was different from the present one because.…”
Every now and then, a case will present a unique situation that the Supreme Court has never discussed before. When that happens, the argument shifts from a discussion of what the law is to what it should be.
A brief has to review the facts of the case and summarize what happened at court. Then it has to explain what the law is and why the law (as applied to your facts) requires the outcome that you think is right. A brief has to include a table of contents and a list of all of the Supreme Court decisions and other sources of law that support your argument. It has to include a summary of the argument (at the beginning) and a conclusion (at the end). All of this must be provided in 50 double-spaced pages or less. Fifty pages sounds like a lot. But unless a case presents fairly narrow issues, lawyers struggle to include everything that needs to be said in just 50 pages.
The appellant files his brief first, and then the appellee is given the opportunity to respond with a brief of his own. Appellees aren’t required to file a brief, but if they don’t, the appellate court is far more likely to agree with the appellant (obviously).
Once the appellee has filed a brief, the appellant can file a short reply brief. Once that’s filed, the case is considered to be “fully briefed.”
Timeline for Filing the Briefs
The rules establish deadlines for lawyers to file their briefs. The rules also provide that the lawyers can request extensions. If we assume that the lawyers will ask for every extension of time available (as is often the case), they have about 100 days to file their briefs. That’s 200 days (100 each for the appellant then the appellee), plus another 14 days for the appellant to file a reply brief. The time that it takes to write and file briefs is the second biggest reason that appeals take as long as they do. (The biggest reason is the time that appellate courts necessarily take to issue decisions — about nine months.)
Deflection to the Court of Appeals
Once the briefs have been filed, the Supreme Court will make a decision about whether it will hear the case or else deflect it to the Court of Appeals to decide. Most family law cases are sent down to the Court of Appeals to decide. The Supreme Court is more likely to keep a case if it presents a novel factual or legal issue or if the applicable law needs to be clarified.
As we have noted, decisions of the Supreme Court are published and cited as law, so when the Court makes a decision on your case, you aren’t the only person affected. The law is affected, based on what the Court said about your case. The Supreme Court is very aware that the decisions that it makes in your case may affect the jurisprudence of the entire state for years to come. That’s why the types of cases that it tends to keep (and not deflect to the Court of Appeals) are the cases that are likely to present important questions that need to be addressed at the highest level.
Your lawyer will be notified within a few weeks of the Supreme Court’s decision to keep or deflect your case.
The Oral Argument
You are allowed to ask for an in-person oral argument at the Supreme Court building before a panel of the judges of the Court that will be deciding your case. The Court has no obligation to agree to your request, but a number of appellate judges have said that their preference is to allow oral argument if it is requested.
Occasionally the Court will require oral argument even if it has not been requested. This isn’t typically done, but it has been known to happen.
Usually the oral argument will be conducted at the Supreme Court Building in Jackson. It is a highly formal proceeding, and your lawyer will devote substantial time in preparation for this event.
Argument takes place in one of the ornate courtrooms in the Supreme Court Building. You are allowed to attend, but unlike at trial, you will not sit with your lawyer.
Most arguments are heard by a three-judge panel, but the Court can elect to sit en banc (“in bench”), meaning that all of the judges of the Court will attend. There are 10 Judges of the Court of Appeals, and nine Justices of the Supreme Court. Arguments are usually heard en banc when the case presents an important or complex issue.
Each lawyer is given 30 minutes, and time is strictly kept. Oral argument is always interesting to watch. The lawyer will have prepared a 30-minute argument, but he is rarely allowed to make it, or at least not in full. This is because the appellate judges question him during his argument, and he is required to stop his argument and answer the question. It’s not unusual for the lawyer to spend his entire 30 minutes answering questions and never delivering his prepared remarks.
Of course, the idea of oral argument is to convince the Court that you’re right and the other side is wrong. But oral argument is also useful to explain complex issues that the brief might not have adequately addressed.
For example, in one case that we argued, nearly all of our 30 minutes was devoted to walking the Judges through a pair of complicated trial exhibits, so that the Court would more completely understand the full extent of what the exhibits proved. This was more explanation than argument, but it helped untangle a complex case and made it easier for the Court to rule in our client’s favor.
Incidentally, oral argument at the Supreme Court Building is open to the public, just as trials in chancery court are for the most part open to the public. You can also watch oral arguments online here.
Submission of the Case
Once all of the briefs have been filed and the oral argument (if any) has been conducted, the appeal is considered to have been submitted. The appellate court has 270 days (nine months) after the submission to file its written decision. During this time, there’s not much for the client of the appellate lawyer to do but wait.
How Appellate Decisions Are Made
As we’ve noted, there are 10 Judges on the Court of Appeals, and nine Justices of the Supreme Court. The chancellor’s decision will be reversed only if a majority of the members of the Court vote to reverse it. For the Court of Appeals, this means that a 5-5 split results in the chancellor’s decision being affirmed.
Cases are initially assigned to a three-judge panel, and each panel has a presiding judge. The presiding judge will either write the Opinion of the Court himself or assign one of the other judges the task of writing it. Once it’s written, the Opinion of the Court will be circulated to all of the other judges on the Court (not just to the other two judges on the panel). At the same time, the judges on the “losing side” of the vote can also have one of their members write an opinion that explains why the majority is wrong. That opinion is known as a Dissent, and the Dissent is circulated to all of the judges just like the Opinion of the Court. Of course, if all of the judges agree with the Opinion, no Dissent is written.
Each judge gets to make suggested edits to the Opinion/Dissent, and the other judges have to decide whether to accept or reject those edits. In the vast majority of cases, a majority of the judges eventually coalesce around one version of the Opinion — but not always. Occasionally, two or more Opinions will be issued that agree on the result but not on the underlying written explanation for the result. These alternative explanations that agree only on the ultimate result of the appeal (but not the underlying rationale for that result) are called Concurring Opinions.
It sometimes happens that after reading the Opinion of the Court and the Dissent, one or more judges decide to change their vote. If enough judges change their votes, then the case “flips,” and the Dissent becomes the Opinion and the Opinion becomes the Dissent. We’re not privy to the back-and-forth that we imagine goes on between appellate judges as they struggle to decide not only who should win the appeal, but how the Opinion of the Court should be written. We are told that sometimes a case will flip and flip again in the course of being decided. The only public statement that the Court makes is how the judges ultimately voted.
However they arrive at a final result, within nine months after the submission of the case the Court will file its Opinion of the Court, as well as any Concurring or Dissenting Opinions.
The Motion for Rehearing
Once the Court files its Opinion, either party can ask the Court to reconsider. Motions for Rehearing are not a request for a do-over. Rather, their purpose is to point out specific errors of fact or law that the Court made in its Opinion. For example, the Opinion might have overlooked a statute or a fact of the case that runs directly counter to the rationale offered in the Opinion.
Neither party is required to file a Motion for Rehearing. If none is filed, then the appeal is concluded. If either party desires to file a Motion, it must be filed within 14 days after the Opinion was filed, and the other party is then given seven days to respond (if he wants to).
The Motion for Rehearing is not nearly as difficult to prepare as a Brief, but our experience is that a good Motion is a difficult writing project, not least because there is so little time to complete it. There is no option to have oral argument on a Motion for Rehearing.
Must Motions are summarily denied without further explanation. If it is granted, the Court will substitute its previous Opinion with a new one. The Court will typically issue its ruling within two to three months after the Motion and the Response have been filed.
If the Supreme Court has retained the case, its decision on the Motion for Rehearing concludes the appeal. On the other hand, if the Supreme Court deflected the case to the Court of Appeals, the latter’s decision on the Motion for Rehearing concludes the appeal unless a party files a Petition for Writ of Certiorari.
Petition for Writ of Certiorari
Either party who is dissatisfied with the Court of Appeals’ decision can ask the Supreme Court to review the former’s decision. The Supreme Court is under no obligation to do so; in fact, it usually refuses the request — in which case, the Court of Appeals’ decision stands as the final word.
If the Supreme Court does agree to review the case, the briefing process does not start anew, and there is no oral argument. Instead, all that the Court will allow the parties to file are (a) the request for Supreme Court review, and (b) the other side’s response to that request. The Supreme Court will review the record on appeal, the briefs that were submitted to the Court of Appeals, the latter’s Opinion, and the Motion for Rehearing and Response. The Supreme Court will issue its own Opinion of the Court.
