Correcting a Judge’s Mistake: Reviews and Appeals

Reviewing and Appealing a Court Order

The trial judge is not a computer, but a human being with individual perspectives, experiences, and biases. Even with our thorough preparation and presentation of your case at trial, the judge can make a mistake. Sometimes the judge applies the wrong legal standard to an issue. Sometimes the judge ignores critical facts to reach a conclusion. The judge can prevent an important document or witness testimony from being presented, or allow evidence to be presented that should have been excluded.

Options for Trial Judge’s Review

If you believe the judge made a serious error, you have two options for requesting that the judge review her ruling on one or more issues. Your first option is to file a motion for new trial within ten (10) days of the judge’s ruling. Your motion for new trial suspends all deadlines relating to an appeal to a higher court. However, any trial issue omitted from your motion for new trial cannot be included in an appeal to a higher court.

Your second option is to file a motion to reconsider (also called a motion to vacate) after ten (10) days and within thirty (30) days of the judge’s ruling. Your motion to reconsider does not suspend the deadline relating to an appeal to a higher court. However, the appeal deadline does not begin to run until the formal order or decree of the judge’s ruling is filed. And, you are not limited to the issues raised in your motion to reconsider if you elect to appeal to a higher court.

You can also ask the trial judge to issue a discretionary “stay” (suspension) of the adverse ruling. Unlike appeals in other types of cases, you cannot post a bond and automatically suspend the adverse ruling.

Higher Court Review

You have an automatic right to appeal the trial judge’s ruling on one or more issues that adversely affect you or your child. Your right is not conditioned on first filing one of the reviewing motions with the trial judge.

Your success when appealing a court order is initially determined through precise compliance with the Oklahoma Supreme Court rules and requirements. First, you must file the appeal with the Supreme Court Clerk within the mandatory 30-day period. If you fail to timely file the correct pleadings, your opportunity to appeal the trial judge’s ruling is irrevocably lost.

You bear the responsibility as the appealing party to “prepare the appellate record.” The appellate record includes pertinent documents filed in your case, the court reporter’s transcripts of the hearings, and the exhibits presented to the trial judge at the trial. The record is prepared by the district court clerk’s office, and mailed to the Supreme Court within 180 days of the appeal filing.

If you requested a stay at the trial level, you have the right to request that the Oklahoma Supreme Court issue a discretionary stay of the adverse ruling. Appellate stays are very rare.

The appealing party then has 60 days to prepare and file a brief, which must comply with Supreme Court rules. The responding party has 40 days to prepare and file a responsive brief. If applicable, the appealing party has the right to file a short reply brief within the next 20 days.

The Supreme Court assigns the appeal to one of four appellate divisions (two in Oklahoma City – two in Tulsa). It can take from 90 days to two years for the appellate division to rule and issue a written opinion. Sometimes the appellate division “publishes” or makes the opinion public, adding to established law. The majority of the time, however, the appellate division elects not to publish the opinion.

The party who is unhappy with the appellate decision has the right to seek a rehearing before the appellate division, or move to the next level of appeal by filing a petition for certiorari with the Supreme Court. Both options have a very short window of time to exercise them – 20 days from the filing date of the appellate opinion. The responding party has 15 days to file a response. The Supreme Court has the discretion to accept or decline the appeal.  If it accepts the appeal and rules, its decision is final – there is no rehearing mechanism. The appealing party’s final option is to file with the United States Supreme Court. It rarely accepts domestic relations or probate appeals.

Almost all issues in domestic relations and probate cases are governed by the “rule of equity”. In equitable cases, appellate review generally applies a high standard, called “abuse of discretion”, before it will overturn a trial judge’s decision. The appellate court will affirm the trial judge’s ruling, even if her reason for the ruling is wrong, so long as the ruling can be justified under established law. The trial judge is given great deference as to her findings relating to witness credibility (believability), as the appellate court knows it is reading a transcript, without the benefit of observing a witness’s demeanor.

Appellate review presumes that the trial judge had sufficient evidence on which to make the challenged ruling. If you are the party who received the favorable trial ruling, the focus of your brief is on the facts and evidence that support the trial judge’s ruling. If you are appealing a court order, the focus of your brief is on the judge’s legal errors, the lack of evidence to support her decision, and the great weight of evidence supporting a decision in your favor. A thorough knowledge of the appellate record and the law are essential, whether you are the appealing party or the party seeking to affirm the trial judge’s decision.

Other types of Supreme Court review include pre-trial reviews of a trial judge’s discovery orders through a petition for a writ of prohibition (stopping the trial judge from issuing an order) or mandamus (requiring the trial judge to issue an order). The Supreme Court can also review a trial judge’s ruling on a legal issue before trial if it furthers judicial efficiency.

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