Updated: Apr 16, 2021
When a potential client approaches me about initiating an appeal, I find that the concerns they share are similar to other clients, regardless of the type of case. Appeals really are an entirely different process than trial court litigation and, although they vary from case to case, you will find substantial similarities whether you appeal a civil case, a family law matter, or even a criminal case.
These are the top five questions that tend to come up in all consultations. The answers apply to nearly anyone thinking about an appeal.
1. Will I Have to Go Back to Mediation?
Probably. Even though you likely attended mediation prior to going to trial, the Montana Supreme Court will make you take another stab at resolving your case if it involves a money judgment (i.e. a party was ordered to pay the other a sum of money) or if the case involves any type of family law issue. Although appellate mediation is very similar to the mediation process you likely went through at the trial level, the timeline and process is more formal in an appeal. If the parties cannot agree on an appellate mediator within 15 days of filing the Notice of Appeal, the Montana Supreme Court will simply assign you an appellate mediator. You could end up with a mediator on the other end of the state – although the Clerk of the Supreme Court does his/her best to nominate someone in close proximity to the parties. Your appellate mediation has to be accomplished within 75 days of the filing of the Notice of Appeal. If you settle the case, the appeal is dismissed. If not, you proceed like any other appeal.
2. Can I Appeal Any Order I am Unhappy With?
Generally speaking, in order to file an appeal with the Montana Supreme Court, you have to have a final judgment or order from the district court. Montana does not have an intermediate appellate court and so parties go straight from trial court to the Montana Supreme Court. That means there is little opportunity to appeal interim issues. Aside from some extraordinary remedies, the Montana Supreme Court is not there to deal with interim issues. There are some exceptions to that rule, including some issues related to jurisdiction and venue. But for the most part, you have to litigate your case all the way to the end before an appeal is appropriate.
3. How Much Will it Cost?
Appeals can be costly, but I often find that the appeal process is a drop in the bucket compared to what parties have already spent litigating their case through to trial. Potential clients are frequently surprised by how inexpensive an appeal is compared to what they have spent in litigation.
4. How Long Will it Take?
You have probably already experienced a fairly slow moving district court case. Depending on the county you live in, it may have taken well over a year for your case to get to trial. In recent years, the Montana Supreme Court has made it a point to clear up their backlog and push cases along as quickly as possible. They have succeeded and the time cases spend at the Supreme Court is often much shorter than the time spent in district court. Still, litigation just takes time. For litigants it can feel like forever. Plan on your appeal taking at least 8 – 10 months.
5. Can I Do it Myself?
While there are many litigation proceedings that parties can handle on their own (particularly if the case is uncontested), an appeal is not really the time to try your hand at lawyering. Because appeals involve a great deal of legal research and briefing, it is important that you find someone with experience to help you. In particular, you want to find a lawyer who has experience with appeals and enjoys doing them. Your trial lawyer might be great, or they may refer you on to someone else. Either way, if you are going to go to the time and expense of appealing, make sure you find someone to help.
For more information on appeals and/or starting one, contact Measure Law, 406.752.6373.
Measure Law attorneys provide expert legal advice with regard to Appeals along with Family Law to help protect your interests and future. See our Practice Areas page for more details.