An Overview of Alabama Appellate Procedure
The Alabama Rules of Appellate Procedure outline the protocol that is to be followed when a party challenges the ruling of a lower court. The appellate procedure in Alabama is an extremely important aspect of the state’s judicial system. It allows justice to be served by affording the opportunity for the judicial system to right wrongs and correct any errors that may have been made at the lower level. The judicial process is not infallible, and mistakes do happen. The appellate procedure offers the opportunity to remedy those errors and injustices in an efficient manner. The appellate procedure starts with the filing of notice of appeal. After the appellate court has jurisdiction over your appeal, it will proceed to provide the parties with the procedures that must be followed in order to ensure your appeal is heard in the correct manner . Following the procedures set out by the Alabama Rules of Appellate Procedure can help you maximize your chances for a favorable outcome in your appeal. The appellate procedure is crucial because it allows the appeals court to address contingencies that could hurt you if not addressed. For example, you may feel that certain evidence should not have been allowed at trial. Or perhaps you believe the judge erred in instructing the jury. If so, you will need to raise these issues on your appeal, so the appellate court can address them. Many times, lawyers frown upon the idea of pointing out error in lower courts as they are seen as disloyal. However, pointing out error does not equate to disloyalty, and it is crucial to challenge the decisions that are adverse to your case.
Pursuing an Appeal in Alabama
An appeal shall be taken by filing a notice of appeal with the clerk within 42 days of the lower court’s order being appealed from. That is a hard and fast deadline for any appeal, from any Alabama state court to the Alabama Supreme Court. If you fail to timely file your notice of appeal, you are out of luck! The Alabama Supreme Court will not allow an appeal if the deadline for filing the notice of appeal has expired.
The notice of appeal must be filed with the clerk of the lower court. The notice of appeal must also be filed electronically with the Supreme Court (with some very limited exceptions). Once the notice of appeal is filed, then an information sheet addressing various appellate topics and questions is to be filed with the notice of appeal. This must be done on a form supplied by the Alabama Supreme Court. An appeal from an adverse ruling in the trial court may be dismissed on your motion, and is not required to be dismissed. Generally, the appeal will be dismissed if it is not contested by the other party, but this is not guaranteed.
If the appeal is to the Alabama Court of Civil Appeals, then the authority for it is the Alabama Supreme Court’s Rule 4(b), or Rule 4(h) if filed during the summer months. Rule 4(b) is the rule authorizing the Court of Civil Appeals. There are some differences between the rules, so between the two appellate forums, the appeal may be dismissed or allowed. If the appeal is dismissed, then the trial court’s decision stands.
If the appeal is not dismissed, there are a number of things that must be done to perfect the appeal. You must have the record filed within 42 days of the entry of the notice of appeal with the clerk of the trial court. The record is the evidence and testimony gathered at trial. The record must be received by the clerk, and if it were not, then the case may be dismissed. On the other hand, as long as the record is filed in the current appeal, it may be used in future appeals for the statements of facts to avoid having to prove them again, so it is possible to request the record that was made in the original appeal if the case is continued on appeal.
The Composition of Alabama Appellate Courts
Alabama’s appellate court system consists of the Supreme Court, the Alabama Court of Civil Appeals, and the Alabama Court of Criminal Appeals. The jurisdiction of the Supreme Court is provided by both the state constitution and the Code of Alabama. Article VI §139 of the State Constitution states that "the Supreme Court shall have appellate jurisdiction only." The Code of Alabama, Title 12-2, Sections 3 and 4 subdivides the appellate jurisdiction of the Supreme Court into four categories:
- (1) writs of error to circuit court decisions and judgments on appeal and review from the district and municipal courts;
- (2) constitutional questions in cases affecting the constitution;
- (3) decisions of the Court of Civil Appeals;
- (4) final judgments or decrees in all criminal cases in which the death penalty has been imposed or in any case in which a statute of Alabama is held invalid or a treaty, statute, or statutory provision of the United States is held invalid and on all cases involving construction of the Constitution of the United States.
The Code of Alabama, Title 12-2, Sections 22 and 53 provide the jurisdiction of the Court of Civil Appeals. The Court of Civil Appeals has exclusive appellate jurisdiction to review "all civil cases" except those involving certain categories of property, elections, domestic relations, workers’ compensation, and revenue. The Court of Civil Appeals has concurrent appellate jurisdiction with the Supreme Court and the Court of Criminal Appeals in those cases in which the damages, exclusive of interest and costs, amount to no more than $50,000.00. The general jurisdiction of the Court of Civil Appeals is to provide a disposition of all appeals; the Supreme Court of Alabama can grant a writ of certiorari to the Supreme Court or a writ of review to the Court of Civil Appeals.
Fundamental Principles of Alabama Appellate Procedure
The most important rules governing the appellate process in Alabama are contained in the Alabama Rules of Appellate Procedure. Rule 28, which provides the general requirements for briefs submitted on appeal is a good place to start. Aside from the obvious requirements that the brief be typed and be stapled or otherwise fastened at the upper left corner, the Rule requires that the issues presented for review appear following the table of contents and not after the statement of the case. This is important because it allows the court to quickly and easily determine the issues involved in the appeal. The "standards of review" in an appellate brief, which should be listed at the end of the issues presented for review section of the brief, is another important requirement of Rule 28. Not only does this requirement inform the reader about the standards to be employed in deciding each issue, it also helps to frame the issues for review in the appropriate legal context. Rule 32 governs the "preparation, filing, and service of briefs." This rule governs formatting, printing and the number of copies of briefs to be filed (and served) in an appeal. Appendix to Rule 32 includes the format for appendixes to the briefs and also includes a model brief. Most importantly, this Rule specifies the time limits for filing briefs. Briefs must be filed after extension requests have been granted and in the order in which the cases are entered on the appellate docket. However, Rule 32(a) also requires that the appellant’s brief be filed within forty-two days of the record becoming "available." Note that April 1, 1997 amendments to the Rules of Appellate Procedure indicate that on the authority of Section 12-2-7, Code of Alabama, 1975, the term "record" in appellate rule 32 may refer to "the transcript of the evidence and other proceedings on appeal required to be included in the record on appeal, or the electronic recording of the oral proceedings if the trial court utilized the state-of-the-art system established by Act No. 95-186 . . . ." See Rule 32 (Notes on Use)(a). Appeals in Alabama courts are typically taken from a final judgment. However, in some instances, appeals may be taken from interlocutory rulings. Rule 4 allows for appeals from interlocutory rulings in certain limited situations. Rule 4 also provides for the interlocutory review of a final judgment after the trial court has certified the judgment as being otherwise proper and appealable pursuant to Rule 54(B). This Rule also provides for the certification of orders and judgments as final despite the existence of a claim that is to be tried later. Appeals may also be taken of matters tried without a jury pursuant to Rules 53 and 54. It is imperative that you obtain and familiarize yourself with the Alabama Rules of Appellate Procedure prior to appealing.
Common Bases for Appeal
In the vast majority of cases, a trial judge’s decision does not warrant review because it is supported by sufficient evidence, rationally supported by the facts, and properly applied legal authority. Alabama appellate courts have held that "the purpose of our appellate review is not to reweigh the evidence or substitute our judgment for that of the trial court." Harris Trust and Savings Bank v. Blue Cross and Blue Shield of AL., 862 So.2d 639 (Ala.2003). An appellate court, however, can reverse or set aside an order or judgment appealed from where it "is so contrary to the great weight of the evidence as to work an injustice." Ex parte Phenix City Bd. of Zoning Adjustment, 539 So.2d 282, 284 (Ala.Cir.Ct.1988). Review, therefore, may be warranted in cases where a trial judge’s ruling is erroneous as a matter of law or is based on findings of fact that were not supported by sufficient evidence. A judge’s ruling may also be reviewed if the appellate court determines that the interests of justice dictate review; typically this only occurs where an erroneous ruling would work to the appellant’s legal detriment and that detriment would not be alleviated unless the appeal is taken. See generally Ex parte State Farm Fire and Cas. Co., 809 So.2d 820, 821 (Ala.2001), (reversing a summary judgment ruling to correct an erroneous judgment that had the effect of denying the plaintiff her day in court); Ex parte Lindler, 642 So.2d 1354 (Ala.1994)(holding that the trial court committed reversible error by denying plaintiff "his day in court").
Appeal Process Stages and Timelines
The appeal process in Alabama, like appellate procedures around the country, is governed by a schedule set out by court rules, in this case the Alabama Rules of Appellate Procedure. These rules, promulgated by the Alabama Supreme Court, set the tone for an orderly and timely appellate process. While variation from the scheduling rules can usually be accommodated, the appellate courts of this state strive to maintain the schedule, just as trial judges seek to maintain the calendar that governs circuit courts.
With only limited exceptions, at least one year is a safe estimate for the time it will take from the date you file your notice of appeal to the date the Alabama Supreme Court issues its mandate closing the case. Close to half of case pending in the Alabama appellate courts are criminal in nature, and a significant portion of the remainder are civil cases that have been appealed from the circuit courts, although a sizable number of appeals from district court judgments are also on appeal at any one time. Given the numbers of cases and the turnover in membership of each of the four courts of appeals in Alabama (there are three intermediate appellate courts in addition to the supreme court), there is relatively little opportunity for the members of these courts to interact personally with each other on cases where they are not on the same panel.
By rule, the schedule starts when you file your notice of appeal. At that point, you have fourteen (14) days within which to file the official transcript of any proceeding included in the appeal. The appellant also has thirty (30) days within which to file the brief of the appellant , with the appellee having thirty (30) days in which you file your brief, and the appellant having fourteen (14) days as a maximum within which to file a reply brief. These time limits are generally felt to be sufficient to allow for the full development of the parties’ positions. If they are not adhered to by either party, however, the Alabama appellate courts can grant extensions of time in which the objections are filed, at their discretion.
When the work of the briefs is finished, the case is set for oral argument, if requested or otherwise directed by the court. Although the court has the option of taking cases without oral argument, it is rare that it does so. Once the case has been submitted, the court will take the case under advisement until the decision is rendered. This process can be fairly quick, or a court can take several months if the matter is particularly complex or otherwise involved.
In any event, the court should render its opinion within three hundred and sixty-five (365) days of the filing of the notice of appeal. In practice, most cases are handled more expeditiously than this. Once the court’s opinion has been rendered, subsequent procedural steps are rare. The appellant has fourteen (14) days within which to file a motion for rehearing, which tolls the period within which the court’s mandate issues. The same is true if either party files a petition for writ of certiorari with the supreme court, although the chances that such a writ will issue are remote in most cases.
If a certificate of judgment issues, the case is closed in the appellate court and the case proceeds in the trial court from the point at which the judgment being appealed was rendered.
The Role of Counsel
Given the complexity and strict requirements of the Alabama Rules of Appellate Procedure, representation by counsel often makes the difference in the outcome of an appellate case. An appellate-level practice differs from practice at the trial level in a number of substantive and procedural ways. There are also many more court rules governing appellate procedures than there are rules for motions, discovery, and other aspects of trials. Moreover, there is a specialized appellate bar in Alabama, comprising lawyers with the particular practice knowledge and experience to understand the rules, requirements, and politics specific to appellate practice. Common misconceptions driving parties to go pro se on appeal include the following: While representation at the appellate level can be expensive, just like at the trial court level, the risks of going without counsel outweigh the costs. The right lawyer will know how the law applies to your case and your possible outcomes. A competent appellate lawyer will not rush a case through on brief without putting in the time to think through all of the possible angles and make all of the possible arguments. A good appellate lawyer will have a proven track record of favorable decisions on appeal, and he or she will assess your case objectively, analyzing your chances for victory based on years of experience in the circuit court, the appellate court, or both. Look for an appellate lawyer with significant experience writing and winning appellate briefs, and who you feel comfortable communicating with. Getting a second opinion from another lawyer regarding the merits of your case may also give you a more realistic view of your chances on appeal.
Impact of Appellate Court Rulings
Appellate decisions affect not only the parties to the case but also the courts and the lawyers who will be involved in similar issues in the future. When an appellate court issues a decision the lower court, other judges, and litigants must follow that ruling in future cases. As a result, the availability of an appeal is an important factor to consider when litigating an issue. Other courts will rely on a body of appellate law, sometimes referred to these days as "settled law" to decide whether the current case is controlled by previous cases. As distinguished from statutes, which are legislative enactments requiring judicial interpretation, or even which "do not bear at all.".
It is essential that lower courts apply appellate decisions correctly to subsequent issues. Arguably, this is one of the reasons that appeals are decided by panels of three judges per district. As a practical matter, coordinated effort is often required between the lawyers and judges involved when navigating a twelve month backlog with primary concerns being to protect the interests of the client by preserving record issues for appeal for years to come. "The panel system is an acceptable method of assuring adherence to the rules established by the appellate court. Appellate practice relies on the reasoning of appellate decisions to settle similar issues that arise in the lower courts. The law used in the appeal becomes a precedent to other cases and must be followed unless there is a change in the law by the state’s legislative body or the appellate courts. … The appellate court is bound by its decisions, and will not deviate from its ruling unless it believes there is a cogent reason for doing so. … [A]s a rule, the appellate court will avoid overruling its prior decisions without a cogent reason for doing so. … Before the appellate court can overrule prior decisions establishing a rule of precedent, there must be some ‘cogent reason’ for doing so.
Recent Developments in Alabama Appellate Procedure
In August 2013, the Alabama Supreme Court promulgated new rules of appellate procedure, effective January 1, 2014. They are similar in many respects to the existing rules, but they also include significant revisions in terms of the timeline for filing the transcript and the record, as well as the content and size of record and brief filings.
With respect to the transcript and record, the principal revision is found in Rule 10; the initial time for ordering the transcript, and for filing a statement regarding the transcript and a cost statement are all shortened. The time for the appellant to order the transcript and file the transcript statement has been reduced from 42 days after mailed notification or 60 days after entry of judgment to the shorter of 14 days after notification is sent or 30 days after entry of judgment. The time for the circuit clerk to transmit the transcript, and for the appellee to file his transcript cost designations, has been reduced from 38 days after the transcript statement is filed to the shorter of 14 days after notification is sent or 30 days after entry of judgment. As a result, appellants are encouraged to order transcripts as soon as possible, and take care to communicate in writing with the appellant and appellate court regarding their need for transcripts. Appellees likely will benefit from the revisions, in that the time for designating which portions of the transcript to include in the record has been shortened; they will now have only 14 days to choose between designated excerpts and file their own designations of additional required portions .
With respect to the briefs and record, Rule 28 and Rule 30 contain revisions which tighten the restrictions on the length of briefs and the content and size of documents in the record. The overall length of both the appellants’ and appellees’ briefs has been cut from 90 pages to 35 pages, although the length for reply briefs remains at 15 pages. Concise and thorough appellate briefs are now required. In addition, while the number of word-processing lines per page for all briefs (except reply briefs) has been increased from 24 to 28 lines, the number of filed pages should remain roughly the same because font size has been reduced from 12 point to 11 point. These changes should eliminate the nuisance of frivolous over-length briefs that must be ignored because they cannot even be considered. Similarly, due to reductions in line spacing and paper size, the allowable size of documents in the record, including briefs, appendix, pleadings, motions and orders, has been reduced from 1024 pages to 916 pages. Historically, applicants often would try to circumvent the limitation by submitting a copy of the complete record to the appellate court on CD-Rom or flash drive. However, this tactic has been sharply restricted by the new subsection (f), which prohibits appendices from including documents not actually filed in the record nor properly designated by the parties, although motions, affidavits, proposed orders and transcripts are deemed filed in the record for purposes of the record and its contents.