A CITIZEN’S GUIDE TO APPEALS (Filing and Maintaining an Appeal)
The information below was last edited 08-04-09
This is a general outline of what is necessary to file, present, and defend against an appeal before the Maine Supreme Judicial Court, which is called the Law Court when it considers appeals. This document is based on the Maine Rules of Appellate Procedure (M.R. App. P.). Those rules should be consulted in presenting or defending any appeal, as this guide only addresses general questions that may arise. This guide references sections of the Rules that are important to consult, but the guide does not, itself, constitute legal advice about maintaining an appeal.
Knowing a few of the terms that appear in the Rules, but which are not encountered in everyday activities, is helpful to understanding the appeal process and this document.
The person who seeks to challenge a trial court decision (from any Maine Probate Court, District Court, or Superior Court) and files an appeal is called the “appellant.” A person who supports and wants to defend the trial court decision is called the “appellee.”
The “appendix” is a bound packet of documents prepared and filed by the appellant; it contains the docket sheet from the trial court, the trial court’s final decision, and other important parts of the trial court’s file, as well as important parts of any transcript or exhibits in the case.
Both the appellant and appellee file a “brief,” which is a document that explains what happened in the trial court and why the trial court decision should be changed or “vacated” (in the case of an appellant’s brief) or why it should stay the same, and be “affirmed” and enforced as it is (in the case of an appellee’s brief). The trial court’s “docket sheet” (consisting of “docket entries”) is the list of events that happen in the trial court. The events listed include complaints and motions filed, hearings or trials held, and orders and judgments issued.
The trial court’s “docket sheet” (consisting of “docket entries”) is the list of events that happen in the trial court. The events listed include complaints and motions filed, hearings or trials held, and orders and judgments issued.
FILING AND PREPARING AN APPEAL
Every trial court decision that is a final judgment, subject to appeal, will result in a written order signed or initialed by the trial judge. Even a decision stated orally in court at the conclusion of the case will also be indicated in a written order. The nature of those orders can vary anywhere from a brief entry with one or two boxes checked and the judge signing or initialing a court form, to a decision of 50 pages or more. Obtain a copy of the written order that constitutes the court’s final decision. An appeal from a decision of the trial court must proceed carefully through the following steps:
(1) Notice of Appeal and Filing Fee. An appeal is initiated by filing a notice of appeal and transcript order form with the trial court that issued the decision being challenged. M.R. App. P. 2(a)(1). The notice of appeal must be signed by a party or the party’s attorney and filed at the proper trial court clerk’s office. A notice of appeal form (CV R-162, Notice of Appeal, Rev. 09/09 (PDF)) may be obtained from the trial court clerk. The notice of appeal form and related information may also be obtained through the Maine Judicial Branch website, http://www.courts.state.me.us/fees_forms/forms/index.shtml or the HelpMELaw.org website. For civil cases, the party filing the appeal must include a brief statement of the issues that the party intends to assert in the appeal. M.R. App. P. 2(a)(2), 5(b)(2)(A).
No filing fee is required for criminal appeals. A party filing a civil appeal must pay the appeal filing fee indicated in the Court Fees Schedule that appears in the Rules and Fees section of the Judicial Branch website. A party who cannot afford to pay the filing fee may seek a waiver of the filing fee by filing with the trial court an application to proceed without payment of fees, which is addressed by M.R. Civ. P. 91.
(2) Time Limits. Most appeals must be filed within 21 days after the judge’s order is entered in the docket. M.R. App. P. 2(b)(2)(A) (criminal); M.R. App. P. 2(b)(3) (civil). Extradition order appeals must be filed within 7 days. M.R. App. P. 2(b)(2)(B). Small claims appeals, which are heard by the Superior Court, must be filed within 30 days as stated in Rule 11(a) of the Maine Rules of Small Claims Procedure.
The entry of the order in the docket may occur on the date of the judge’s written or oral decision or shortly thereafter. An appeal is valid even if it is filed before the decision is entered in the docket. M.R. App. P. 2(b)(1). However, an appeal will be dismissed if it is filed after the deadline. An extension of time to file an appeal may be granted, but only upon a showing of good cause, meaning a good excuse for the filing delay. A request to extend the time to file the appeal must be presented to the trial court. M.R. App. P. 2(b)(5). The extension of time may not exceed 21 days from expiration of the original deadline, except in the rare case when a court clerk does not send out a notice of judgment to the party.
(3) Cross-Appeals. Even after one party in a civil case files an appeal, any other party in the case may file a cross-appeal to argue for some change to the trial court decision. M.R. App. P. 2(c)(3). A cross-appeal must be filed within the time for filing an appeal or within 14 days after the filing of the first notice of appeal, whichever happens last. M.R. App. P. 2(b)(3). When more than one party appeals, the party who filed the first notice of appeal is considered the “appellant,” and the party who filed a later notice of appeal is considered an “appellee” (as well as a “cross-appellant), even though the “appellee” also seeks to change the trial court’s decision.
(4) Transcript Preparation. The court does not prepare transcripts of court proceedings for appeal. Instead, the parties are responsible for ordering and paying for transcripts. In criminal appeals, there is a standard transcript that will be prepared upon a request for a transcript with the filing of an appeal. It includes the testimony of the witnesses at trial, any bench conferences with the judge, and, if the case was a jury trial, the judge’s instructions to the jury. M.R. App. P. 5(b)(1). The parties to a criminal appeal may request preparation of only certain portions of the transcript by indicating that on the court’s transcript order form.
There is no standard transcript in a civil case. If the appeal asserts that the court’s findings of fact are not supported by evidence in the record, a transcript of all or most of the trial proceedings is probably necessary to address these issues. M.R. App. P. 5(b)(2)(A). When no transcript or an incomplete transcript is provided, the Law Court may assume that the record supports the factual findings and discretionary choices, including remedies, ordered by the trial court.
After the transcript order is filed with the notice of appeal, the other parties to the appeal have 7 days to order additional portions of the transcript. M.R. App. P. 5(b)(1), (2)(A). Within 7 days after filing the notice of appeal, the party filing the appeal must make satisfactory arrangements to pay for the ordered transcript, or the transcript order may be canceled, and the appeal will proceed without a transcript. M.R. App. P. 5(b)(2)(B). Defendants in criminal cases and parties in civil child protective cases who qualify for court-appointed counsel may have the cost of the transcript on appeal paid as an expense of the court. In the limited circumstances addressed in Maine Rule of Civil Procedure (M.R. Civ. P.) 91(f)(2), a tape of a hearing may be utilized instead of a transcript.
(5) Copies of Documents to Other Parties. Copies of the notice of appeal and transcript order form, the briefs, and all other documents filed with any court in connection with an appeal must be served on each other party to the appeal by mailing a copy to that party or the party’s lawyer if the party has a lawyer representing him or her. M.R. Civ. P. 5(a); M.R. App. P. 7(c).
(6) The Trial Court Record. Within 21 days after the filing of the notice of appeal, the clerk of the trial court will transmit the record to the Clerk of the Law Court. M.R. App. P. 6(a). The trial court’s record includes the trial court file containing every document related to that case filed in the trial court, plus a copy of the docket entries. Generally, the record will include trial exhibits that were documents or photographs, but, unless a special request is made, it will not include bulky documents or tangible objects that were exhibits, such as voluminous reports, weapons, clothing, or drugs. M.R. App. P. 6(b). When an appeal to the Law Court involves a challenge to a trial court decision on an appeal from a state or local administrative agency, the trial court’s record will include the record from the state or local agency proceeding that was presented to the trial court, in addition to the record created in the trial court.
(7) The Law Court Briefing Schedule. When the transcript is filed with the Law Court, or when the record is received if no transcript is ordered, the Clerk of the Law Court will send to each party to the appeal a notice stating the dates by which the briefs and the appendix must be filed. M.R. App. P. 7(a). This notice will have on it a Law Court docket number, which is different from any trial court docket number. Only the Law Court docket number should be used in all filings with the Law Court. The brief filing schedule set by M.R. App. P. 7(b) will be stated on the Law Court notice as follows:
- The appellant’s brief must be filed within 56 days (8 weeks) after the date that the record and transcript, if any, are filed in the Law Court.
- The appendix, discussed below, must be filed within 14 days after the appellant’s brief is due to be filed.
- The appellee’s brief must be filed within 105 days (15 weeks) after the date on which the record is filed.
- The appellant then may file a reply brief within 14 days after the appellee’s brief is due to be filed.
(8) Preparing, Filing, and Contents of Briefs. The rules for briefs, including directions regarding form, content, and organization, appear in M.R. App. P. 9.
A brief may not exceed 50 pages without permission from the Law Court. Although the 50-page limit indicates an outside limit, the great bulk of the briefs filed range in length from 10 to 25 pages. The appellee’s brief must follow the same form as the appellant’s brief, but it need not include a statement of the issues or the facts of the case, unless the appellee wishes to state the issues or facts differently than stated by the appellant.
An appellant may file a reply brief limited to addressing new arguments or issues raised in the appellee’s brief. A reply brief may not exceed 20 pages without prior approval from the Law Court. M.R. App. P. 9(c).
Briefs may discuss any source and cite any appropriate authority for the legal arguments made. However, briefs may not discuss facts or attach documents about the facts that are not part of the record that was considered by the trial court.
Maine’s major law libraries have copies of briefs from past cases. The major law libraries are the Cleaves Law Library in the Cumberland County Courthouse in Portland, the Maine State Law and Legislative Reference Library in the State House in Augusta, and the Garbrecht Law Library at the University of Maine School of Law in Portland.
(9) Distribution of Briefs. Ten copies of each brief must be filed with the Clerk of the Law Court. Additionally, two copies of each brief must be mailed or otherwise delivered to each of the other parties to the appeal or their attorneys, who are separately appearing or separately represented. M.R. App. P. 7(c). Thus, if one attorney represents three other parties to the appeal, only two copies of a brief need to be served on that one attorney representing the three parties. However, if the same three parties are each represented by a separate attorney, or if they are each representing themselves, then two copies of a brief must be served on each one of the three parties or their attorneys.
(10) The Appendix to the Briefs. The appendix to the briefs includes copies of important documents from the trial court record. Except for child protection cases, the appellant is responsible for preparing and filing the appendix to the briefs. M.R. App. P. 8(a). Eight copies of the appendix must be filed no later than 14 days after the date on which the appellant’s brief is due to be filed. M.R. App. P. 8(b). If the appendix consists of 20 pages or fewer, it may be bound with the appellant’s brief and thus filed at the same time. M.R. App. P. 8(f). A longer appendix must be bound and filed separately.
Rule 8 requires advance communication between the parties to ensure that the appendix includes the materials each party wants to include in the appendix. The contents of the appendix that are mandatory for all appeals are specified in M.R. App. P. 8(g). The contents that are mandatory for specific types of appeals appear in M.R. App. P. 8(h). The rule also specifies the order in which required documents must appear in the appendix.
(11) Process After Briefing. The parties to the appeal will be notified if the appeal will be considered “on the briefs” or if the parties will be asked to appear before the justices to present oral argument. If the appeal is set for consideration on the briefs, the parties do not need to do anything else. If the appeal is set for oral argument, the Clerk will notify the parties of the specific date and time of the argument.
(12) Oral Argument. At oral argument, the parties are allowed to state their positions and then respond to questions from the justices. Each side is allotted up to 15 minutes for oral argument. M.R. App. P. 11(b). Many appellants divide their time, requesting approximately 12 minutes to present their opening argument and reserving up to 3 minutes for an opportunity to rebut the appellee’s argument. There is no rebuttal time for appellees.
(13) Decision. A decision in an appeal may be published any time from one day up to a year or more after the appeal is considered on the briefs or argued. Many decisions are issued within three months of the date of the Law Court’s initial consideration of the appeal.
(14) Proceedings After Decision. After the decision on an appeal, the Law Court issues a “mandate” indicating the outcome of the appeal, i.e., whether the trial court’s decision is vacated or affirmed and whether further proceedings are necessary. M.R. App. P. 14(a). When the mandate issues, the case file is returned to the trial court. The trial court resumes authority over the case, either to enforce the terms of any judgment that was affirmed or to proceed as directed by the Law Court in the case of a judgment that was vacated.
In civil cases, the Law Court may also order that costs on the appeal must be paid to the prevailing party by the non prevailing party. M.R. App. P. 13. Costs do not include attorney fees, but do include other out-of-pocket expenses such as the expenses of producing the briefs and the appendix and filing the appeal. Occasionally, when authorized by statute or when the Law Court determines that an appeal was frivolous, the Law Court may order payment of attorney fees or award a sum toward attorney fees on appeal. M.R. App. P. 13(f). Alternatively, and particularly in domestic relations cases, see 19-A M.R.S. § 901(6), the Law Court may direct the trial court to decide the appropriate amount of attorney fees, if any, due as a result of the appeal.
THINGS TO CONSIDER BEFORE APPEALING A DECISION
In considering an appeal, several points are important:
(1) Party Status Required. To appeal, you must have been a “party” to the trial court proceeding—that is, a plaintiff, a defendant, or, occasionally, an intervenor. M.R. App. P. 2(a)(2). Subject to a few exceptions, those who were not parties to the trial court proceeding do not have a right to appeal.
(2) The Decision Must Be “Final.” Appeals generally may be taken only from “final” decisions—that is, decisions (also called judgments) that resolve all pending claims leaving nothing else for the trial court to do in the case. Appeals generally are not allowed from interim trial court decisions or rulings that determine rights while the case is pending in the trial court, but do not finally decide the case. Subject to limited exceptions, there is no immediate right of appeal from rulings that, for example, (i) admit or exclude evidence; (ii) decide that some claims or issues will be tried while others will not be tried; (iii) resolve a pretrial dispute about discovery, disclosure of information, or evidence; or (iv) are characterized as “preliminary,” “interim,” “temporary,” or are otherwise issued during the course of the proceeding but before a final decision. Once a final decision is made, a party may appeal from any earlier ruling that may have affected the final judgment and was properly opposed or objected to before the ruling was made. M.R. App. P. 2(b)(4).
(3) Review is Limited to the Record. Decision-making on an appeal is based on the “record” developed in the trial court. M.R. App. P. 5 & 6. Oral testimony, oral arguments, and oral rulings by the judge are part of the record. These oral statements will be considered on appeal if the trial court hearing was recorded and a transcript is prepared and presented to the Law Court on appeal. The party filing the appeal is usually responsible for ordering and paying for the transcript. M.R. App. P. 5(b). The transcript must be ordered when the notice of appeal is filed. M.R. App. P. 2(a)(1). When no transcript is presented, the reviewing court generally will infer that the record would support all findings of fact, discretionary rulings, and remedies set forth by the trial court.
(4) No New Trial. An appeal is not a new trial. The appellate court will not consider new testimony, new exhibits, or other material relating to the facts of the case that were not already presented to the trial court. When new facts, new testimony, or new exhibits are discovered for the first time after trial, and could not have been discovered before trial, the appropriate remedy may be a motion to the trial court for a new hearing or trial as described in M.R. Civ. P. 59, 60(b), as well as Maine Rule of Criminal Procedure (M.R. Crim. P.) 33.
(5) Objection to Trial Court Ruling Necessary. Most trial court rulings on the facts, on the evidence, or on procedural matters must have been opposed or objected to in the trial court before any challenge to the ruling will be considered on appeal. There is an exception to this rule for what are called “obvious” or “plain” errors, when the trial court makes a ruling that is not correct as a matter of law and the challenged ruling substantially affects a party’s personal, property, or liberty rights or the fundamental fairness of the proceeding. Maine Rule of Evidence (M.R. Evid.) 103(d) and M.R. Crim. P. 52(b) provide guidance. The “obvious error” rule is infrequently applied to overturn a ruling in a criminal case and almost never applied to overturn a ruling in a civil case. Thus, making a proper objection or argument in the trial court is essential to serious consideration of most claims of error on appeal.
(6) The Filing Fee is Not Refundable. If an appeal is withdrawn or if a party files an appeal that does not meet the requirements of the rules and the appeal is dismissed, the court will not refund the appeal filing fee.
The above represents a general outline of the steps through which an appeal proceeds to the Law Court. There are some exceptions to these procedures that were omitted from discussion in this guide in order to keep this outline general and brief. Such exceptions may, however, become significant in some appeals. Accordingly, the rules and case law governing particular appeals should be considered carefully as any appeal is prepared and processed.
IF YOU NEED LEGAL ADVICE
Visit the Lawyers and Legal Help section for information about free civil legal services that may be available to you. The Maine Commission on Indigent Legal Services provides representation to low-income criminal defendants, juvenile defendants, parents in child protective cases, and people facing involuntary commitment to a psychiatric hospital, who are entitled to an attorney under the Constitution or Maine law.
are not income eligible for these services, you may be able to speak
to a lawyer for half an hour through The Maine State Bar Association's Lawyer Referral Service at (800) 860-1460 or visit http://www.mainebar.org/lawyer-referral/lawyer-referral.aspx.
The Maine State Bar Association's Lawyer Referral Service charges a $25 administrative fee, and referred attorneys will not charge for the first half-hour of a consultation. After the first half-hour, standard legal fees may apply. Everyone is eligible for this service.