The words “appeal” are prevalent in our society today. Typically, following a flashy criminal trial, or much publicized civil one, the losing lawyer states they’re “going to appeal”. Most people assume that appeals occur as a matter of course or that they are automatic. This is incorrect. In New Hampshire, parties need to file what is called a notice of appeal and comply with several other trial court and Supreme Court rules to effectively commence an appeal.
On their face, notice of appeals appear to be easy. The Court’s form requires basic information about the trial court, dates of hearings, parties, and some other obvious information. However, while they are relatively easy to file, parties need to take care in preparing their filing.
First what type of appeal are your requesting? A party must note their intent to appeal on one of two grounds: mandatory versus discretionary (See New Hampshire Supreme Court Rule 7). The first ground of appeal is a notice filed following a final judgment on the merits. Most appeals will fall under this category. This means that the New Hampshire Supreme Court is required to take the case. They do not have the discretion under law, like the United States Supreme Court, to decline the case. Only limited areas of law, including some family law issues, are considered “discretionary”. Discretionary appeals allow the New Hampshire Supreme Court to decide whether it takes the case or not.
Next, you want to make sure that you list all of your questions of law that you want the Court to consider. To be clear this is not an opportunity for a grievance list. Rather, a proper notice of appeal is a balancing act. Including every single wrongdoing that you believe the trial court committed is a surefire recipe for failure. Typically, it is recommended that you hone your issues on appeal to three or four items. This said, if you are going to list more than three appealable issues, you need to make sure that you have concisely narrowed the matter to allow the Supreme Court to consider the questions you want them to answer.
It is also important to narrowly tailor your appeal and focused on questions of law. Questions of law are questions of statutory or caselaw interpretation. Put more simply, did the Court apply the law correctly? Most people believe appeals are opportunities to relitigate their case. However, questions of fact are highly unlikely to succeed on appeal. The New Hampshire Supreme Court is not going to substitute their opinion of the facts from the trial courts unless there is clear error. Clear error is a legal term, not a personal statement of belief. For example, if the trial found that the parties had two children in child support calculation case, when they clearly have three children, this is clear error. Yet, finding a party in contempt because the trial court found opposing party’s testimony more credible, is not clear error.
Appeals are a particular area of law, just like personal injury or family law. There is a separate court with different rules that apply. Any appeal is likely going to require extensive legal research and writing. Briefs and responses will need to be filed. Those briefs need to comply with local rules. It is possible motions may be required just like in a trial court case. This is why it is critical that if you are considering an appeal, or the opposing party in your case filed an appeal, that you speak with an attorney about your rights and responsibilities. If you are considering an appeal, or find yourself subject to one, you should speak to one of our appellate law attorneys at Parnell, Michels & McKay. Our attorneys will explain the appeals process to help you better understand your chances of success and/or strategies in defending an appeal. If you have questions about appeals, contact one of the experienced attorneys at Parnell, Michels & McKay. We will help defuse the appellate process and help you defend a good decision or ask the Supreme Court to remand a bad decision where warranted.