Don’t Expect Swift Justice Through An Appellate Action

Andrey Burmakin – Fotolia

The criminal sentence, divorce decree, or judgment has just been entered and you believe the trial court was wrong. You plan to seek an appeal and believe justice will be quick. Unfortunately, the appeals process in Nebraska is anything but quick.

Nebraska Appeals Process Timeline

Appellant’s Requirements

Upon the entry of a criminal sentence, divorce decree, or judgment, a party has thirty days to file a Notice of Appeal and pay the filing fee. Along with that Notice, certain other requests need to be filed. One notice tells the Clerk of Court to gather certain pleadings relevant to the case and appeal. This compiling of pleadings is called the “Transcript”. The second is a request to the court reporter asking that portions of the trial and/or hearings be transcribed into written form. This transcription of court proceedings is called the “Bill of Exceptions”. A court reporter has up to seven weeks to complete the bill of exceptions unless more time is granted by the Court of Appeals or Supreme Court.

Once the Transcript and Bill of Exceptions is complete, the appellant, the one who filed the appeal (pronouned “uh-pell-unt”), has thirty days to file a brief with the Clerk of the Nebraska Supreme Court. In this brief, the appellant will state what errors the trial court is believed to have committed along with an argument, using past court opinions, to persuade the Nebraska Court of Appeals or Supreme Court to do one of two things. Reverse the trial court decision or ask for a new trial.

Up to this point, as much as nearly four months could have passed since the entry of a criminal sentence, divorce decree, or judgment. And we’re not even to the halfway point!

Appellee’s Requirements

After the appellant files a supporting brief, the appellee, the party against the appeal (pronounced “apple-eee”), has a couple of options.

• The appellee can file a Motion to Dismiss arguing the appellate court doesn’t have jurisdiction to hear the appeal. (Can be filed at any time.)
• The appellee can file a Motion for Summary Affirmance, which is a request that the Court of Appeals or Nebraska Supreme Court affirm, or agree, with the trial court without the need to file a full brief. A motion for summary affirmance does not toll, or suspend, the time appellee has to file a brief, so commonly a request to extend the brief deadline is required.
• The appellee can file a full brief in response to the appellant’s brief. This brief must be filed within 30 days after appellant’s brief is filed.
• The appellee can file a full brief in response to the appellant’s brief, but also file a cross-appeal, arguing the trial court was wrong about other decisions in the criminal sentence, family law decree, or judgment. This brief and cross-appeal must be filed within 30 days after appellant’s brief is filed.

At this point, the appeal could be nearly four months old and five months from the original entry of criminal sentence, divorce decree, or judgment.

Return of the Appellant

Presuming the Nebraska Court of Appeals or Supreme Court did not dismiss or summarily affirm the trial court decision, the Appellant has a chance to respond to the Appellee’s brief and cross-appeal. The Appellee has fourteen days to file a response at which point the case is eligible for submission with the appellate court.

In the Hands of the Nebraska Court of Appeals/Supreme Court

Once all briefs have been submitted to the court, the Nebraska Court of Appeals or Nebraska Supreme Court can schedule the case to be heard for what is called oral argument or can submit the case without oral argument, which simply means they will begin deciding the case.

If the appellate court schedules oral argument, a proposed call will be made to determine attorney availability. This proposed call is usually delivered to attorneys within 30 days after the appellant’s reply brief has been filed. Barring any attorney availability issues, oral argument could be scheduled around 6 weeks after the proposed call is sent.

After oral argument, the Nebraska Supreme Court or Court of Appeals will render a decision and put that decision into an Opinion, which is a written court pleading that will outline the court’s jurisdiction to allow it to make a decision, it’s decision, and how it came to that decision. The Opinion could be released anywhere from a month to six months in some cases.

As a Nebraska appeals attorney, I’ve had cases that have lasted as short as five months and as most as a year. So a party may eventually get justice, but it is a long road to get there.