Taylor C. Young 2013-04-04 07:14:27
The Appeal: How Long Will This Take? Taylor C. Young is an AV® Preeminent™ Peer Review Rated appellate lawyer and co-founder of Mandel Young, a Phoenix-based appellate boutique. His firm’s mission is to level the litigation playing field by providing small-to- mid size law firms, in-house legal departments, and others ready access to top-notch appellate counsel when they need it most. Taylor handles appeals in a wide range of substantive areas, including complex commercial disputes, torts, and family law. He regularly teaches, speaks, and writes on appellate topics. His musings can be found on Mandel Young’s appellate blog – www.myappellate.com and at www.mandelyoung.com. Aside from “How much will this cost?” the most consistent question our firm is asked by prospective appellate clients is “How long will this take?” Of course, the answer is “It depends.” For direct appeals in civil matters, which make up the bulk of our practice, we tell clients to expect to wait at least a year and probably significantly longer if the matter involves any complexity. As you might imagine, prospective clients just love that answer. Fortunately, we have some statistics that help shed a little more light on how appellate cases move through the Arizona Court of Appeals. Overall Time to Disposition As part of the Arizona Supreme Court’s CourTools initiative, the two divisions of the Arizona Court of Appeals regularly evaluate their own performance in disposing of cases against specific reference points for five case types: civil, criminal, juvenile, special actions, and workers’ compensation. The reference points were selected in 2008 and represent periods of time by which approximately 75% of Division One’s cases had reached the relevant stage in the years prior to Fiscal Year 2009. For overall time-to-disposition, i.e., the time from when a notice of appeal is filed to when the case is decided, the court uses a reference point in civil cases of 400 days. For the most recent fiscal year, Division One reports that 82% of its civil cases were decided within 400 days of the notice of appeal. The most recent data from Division Two indicates that 99% of its civil cases were decided within 400 days.1 Because the bulk of appeals at the Court of Appeals are filed in Division One, there is a significant chance that a prospective client’s appellate matter will still be pending before the court thirteen months after the appellate process began. And, although the court does not have a metric for the complexity of the matters before it, experience teaches us that a significant proportion of cases that go longer than 400 days involve difficult questions of law, lengthy trial court records, or both. Stages of Appeal Although most prospective clients are interested in the bottom line time-to-disposition estimate, Division One does offer additional insight into how cases progress through the various stages of appeal. Allowing sufficient time for each stage to complete, prioritizing certain types cases for public policy reasons (juvenile cases are first in line), and the fact that there are only five judicial panels in Division One (and only two panels in Division Two) all contribute to the length of time it takes for civil cases to progress to disposition. Transmitting the Notice of Appeal An appeal is initiated by a party filing a notice of appeal in the trial court. The trial court must then prepare an index of the trial court record and transmit the notice of appeal to the applicable division of the Court of Appeals. For the most recent reporting period, in 91% of civil cases in Division One, the Court of Appeals received the notice of appeal from the trial court within 40 days of when it had been filed by the party. Briefing to Decision After a civil appeal is docketed at the Court of Appeals, the clerk issues an order setting the briefing schedule, which typically takes at least 90 days to complete. Once all briefs have been filed, the appeal is deemed to be “at issue.” Division One reports that 75% of its civil cases are decided within 225 days from when the case is “at issue.” In other words, three out of four civil cases are decided within seven-and-a-half months of completion of briefing. Under Advisement to Decision Once a case is “at issue,” it is eligible for assignment to a three judge panel for consideration and decision. Typically, the case is “written up” by a law clerk who works for one of the judges on the panel or a staff attorney for the Court of Appeals, including a non-binding draft of how that judge would decide the case.2 The case is not taken “under advisement” until the full panel convenes to hear the case—either with or without oral argument. Only after the case is taken under advisement is one of the judges assigned to draft the official decision of the court. In FY2012, 86% of Division One’s civil cases were decided within 120 days of being taken under advisement. Getting It Right It takes time for the court to appropriately scrutinize the cases brought to it and issue rulings that clearly and thoroughly explain the court’s reasoning. In the end, the appellate process is about getting it right and taking the time to do so.
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