We’ve previously written about the four phases of civil litigation in Oklahoma. But what happens when the trial is complete? Whether you prevailed in the trial court or not, your case may not be over.
Oklahoma, like all states, has an appellate system in place designed to correct errors made in the trial court and you — or your opponent — may choose to appeal an adverse judgment.
There are several steps to a general Oklahoma civil appeal. Each will be discussed briefly below. Please understand, this information relates to a general civil appeal of a final order of a district court in a civil case. There are many other rules that apply to other types of appeals, such as appeals in criminal cases, interlocutory appeals, and many others.
If you are the party holding an adverse judgement, before filing an appeal you will no doubt want to discuss with your trial and appellate lawyer whether you should ask the trial court to reconsider its ruling. However, you must be aware that asking the trial court for post-judgment relief can have disastrous consequences to your appeal, should your post-judgment motion be denied.
Most notably, if you seek a new trial in the district court, it is critical that you raise every issue that may want to later appeal, as you will only be able to raise on appeal those issues which you raise in your motion for new trial. All other issues will be waived for purposes of appeal.
Additionally, certain post-trial motions can extend your time to file an appeal, but many do not. Because the failure to appeal within the allotted time is a jurisdictional bar to your appeal, it is absolutely critical that you are certain whether your post-trial motion extends your appeal time or not.
Filing Your Appeal
Once you have decided to appeal an order of the trial court, the first step is to file a petition in error with the Oklahoma Supreme Court. This is the instrument that begins your appeal. It is a relative simply document that briefly apprises the Court of the type of case you are appealing, the parties, and provides a general outline of the facts and procedural posture of the case.
As referenced above, timing is absolutely critical at this stage. For most Oklahoma civil appeals, you have thirty days from the date the challenged order was filed with the district court clerk to file your petition in error.
The Oklahoma Supreme Court has held that they are without jurisdiction to review the reasons why a petition in error was filed late. Thus, failure to file a petition in error on time acts as an absolute waiver of your right to appeal.
Compiling the Record
Concurrently with filing the petition in error, an appellant will also file its designation of record in the trial court. The designation of record tells the clerk of the court below which documents and transcripts to include in the record.
The opposing party is given an opportunity to designate additional material that the clerk will include in the record on appeal. This is critical stage because the appellate courts will not consider materials outside the record on appeal.
Thus, a well-constructed record is vital to the appellant’s success. Although it is the clerk of court that compiles the record, the deadline for completing the record — which is six months from the date of the entry of the order under appeal — is charged against the appellant.
Thus, as an appellant it is important that you work closely with the clerk of the district court and any court reporters working on designated transcripts to ensure that record is completed on time.
The Briefing Cycle
Once the record is complete, the appellant will have sixty days to file its brief in chief. The brief in chief the appellant’s opportunity to show the appellate court what errors were made below that justify reversal. After the brief in chief is filed, the appellee is given forty days to file its answer brief. After the answer brief is filed, the appellant is given twenty days to reply to the answer. The reply brief is the final brief filed on appeal.
Assignment and Opinion
In nearly all cases, once the briefing is complete, the Oklahoma Supreme Court will assign the case to a division of the Oklahoma Court of Civil Appeals. A three-judge panel will decide the case, and an opinion will be drafted either affirming or reversing the decision below. There is no time limit for the Court of Civil Appeals — or for the Oklahoma Supreme Court, should they elect to retain the case — to issue an opinion.
Reconsideration and Certiorari
If the opinion is adverse to you, you have the opportunity ask the rendering court to reconsider its opinion. If you choose not to do so, or if you do so and court denies the relief you seek, you may then, should you have grounds, ask the Oklahoma Supreme Court to review an opinion of the Court of Civil Appeals on certiorari.
The Oklahoma Supreme Court has the discretion to take the case up on certiorari or not. If the Oklahoma Supreme Court chooses to take the case on certiorari, they may affirm or reverse the Court Civil Appeals. Finally, if you continued to be aggrieved and should you have appropriate grounds for review, you have ninety days to seek consideration, also on discretionary certiorari review, from the Supreme Court of the United States.
Once an opinion is considered final — meaning that no further requests for reconsideration or certiorari to the Oklahoma Supreme Court are possible — the Oklahoma Supreme Court will issue its mandate. The mandate is the order sending the case back to the lower court for implementation of the appellate court’s order, and further proceedings, if necessary.
Until the mandate issues, the opinion of the appellate court, be it the opinion of the Oklahoma Court of Civil Appeals or the Oklahoma Supreme Court, is without force and effect.
The processes and rules governing an Oklahoma civil appeal, just as the litigation that precedes it, can seem complex and daunting. Whether you are a party holding an adverse judgment, faced with the prospect of defending an appeal, or a fellow attorney desiring a consultation, there is no reason to brave this process alone.
Call the appellate team at 405-701-5355 to discuss your appeal today.