How Long Does an Appeal Take?
Picture this: It’s been two years since you walked into your attorney’s office with a case. You have filed your pleadings, diligently participated in the discovery process, you were deposed and you deposed the defendant, and you tried to settle at mediation but the other side refused to be reasonable. So, you went to trial, your attorney did a wonderful job, and the jury awarded you a judgment against the defendant. Great, right?
The defendant’s attorney stands up and asks the judge for ten days to file any post-trial motions and the judge says, “sure, no problem.” Post trial motions? You thought you were finished, but you may have just completed the first part of the process.
In South Carolina, as in almost all jurisdictions in the United States, the parties to a lawsuit have a right to appeal to a higher court to have a trial decision reviewed. In some cases, post-trial motions, such as motion for a new trial or a motion to amend the judgment, are the first step in the appellate process. One of the reasons for such motions are to ensure that specific legal arguments of the losing party are preserved and ruled upon by the trial judge. In a majority of cases, these post-trial motions are denied. However, until the motions are denied, the defendant’s time to file a notice of appeal is stayed.
So, assuming the defendant appeals, how long will it take? Below is a timeline to consider:
Day 0: Trial concludes, Defendant requests 10 days to file post-trial motions
Day 10: Defendant files motion to amend and motion for new trial
Day 40: The motions are denied (absent extraordinary circumstances, judges will usually rule on post-trial motions within 30 days after filing or sooner). The defendant now has 30 days to file a notice of appeal.
Day 70: Defendant files notices of appeal with the clerk of court and the Court of Appeals. Defendant sends a request for a court reporter to create a transcript of the trial.
Day 100: The court reporter delivers the transcript to Defendant’s attorney (court reporters are generally required to deliver the transcript within 30 days after request but may request and be granted extensions for good cause).
Day 130: Defendant requests a 30-day extension to file the initial appellant’s brief and designation of record on appeal (Defendant’s deadline to file the initial appellant’s brief and designation of record on appeal is 30 days after receipt of the transcript; however, one extension of this deadline is routinely granted by the Court of Appeals except in cases involving child custody or visitation).
Day 160: Defendant files the initial appellant’s brief and designation of record on appeal.
Day 190: Your appellate attorney file the initial respondent’s brief and designation of record on appeal (due 30 days after initial appellant’s brief).
Day 200: Defendant files the initial reply brief (due 10 days after initial respondent’s brief).
Day 230: Defendant delivers the completed record on appeal (due 30 days after initial reply brief).
Day 250: Each party files their final brief which are updated to include specific references to the completed record on appeal and Defendant files the record on appeal (due 20 days after delivery of the completed record on appeal).
It has now been over eight months since your trial has concluded, but the appeal is finally ready to submit to the Court of Appeals for consideration. However, the Court now has a decision to make - does this appeal warrant oral argument - where the attorneys appear in person to explain their positions to a panel of Court of Appeals judges - or can the appeal be decided without oral argument. If the appeal is decided without oral argument, a decision is likely within a few months after it is submitted to the Court; however, if the Court determines that oral argument is necessary, then it will likely be several months before oral argument is scheduled and then another few months for a decision to be rendered.
Day 250 + ?: Clerk sends out notice of potential oral argument at least 40 days before the term of the Court of Appeals at which the case may be heard.
Day 275 + ?: Clerk sends out the roster of cases for the term at least 15 days before the term commences.
Day 290 + ?: Oral argument is heard before a panel of Court of Appeals judges. It will likely take at least a few months before an opinion is issued.
Day 380 + ?: Opinion of the Court of Appeals is filed affirming the trial court and your judgment.
Day 395 + ?: Defendant files a petition for rehearing.
Day 395 + ?: Petition for rehearing is denied. Defendant may now petition to the South Carolina Supreme Court for certiorari review; however, unlike the initial appeal to the Court of Appeals, Defendant does not have a right to review by the Supreme Court and this petition will most likely be denied.
Day 395 + ?: Assuming Defendant does not file a petition for certiorari or it is denied, the case is remitted to the trial court.
As you can see, your case has now spent almost as much or more time on appeal than it did getting to trial. Furthermore, appeals are their own legal animal with their own set of rules and procedures. As such, if you are facing an appeal, it is advisable that you contact an attorney who is experienced in this field of law.