Notice of Appeal: Now What, 0517 SCBJ, SC Lawyer, May 2017, #44

• Author: Benjamin R. Goodingm, J.

Notice of Appeal: Now What?

Vol. 28 Issue 6 Pg. 44

South Carolina BAR Journal

May, 2017

Tips for Your First Time in a South Carolina Appellate Court

Benjamin R. Goodingm, J.

In the practice of law, like life, you win some and you lose some. Sometimes you don’t have the right facts. Other times the judge or jury didn’t buy your side of the story. And sometimes the law just isn’t in your favor. In these situations, it wasn’t in the cards for you to win. There may be times, however, when the trial judge misapplied the law to the facts of your case or failed to apply the proper law in the first instance. The mechanism for correcting these errors is an appeal. An appeal can be a steep task for those who are unfamiliar with the appellate process. But with effort and planning, you can increase the odds that your first appeal will be a success.

Let’s get started.

When contemplating an appeal, the first thing any lawyer should do is review the rules. This is particularly true for a lawyer handling his or her first appeal. The South Carolina Appellate Court Rules are filled with specific instructions addressing everything from dead-lines and citation formats to what color paper to use for a briefs cover page.¹ If you have never handled an appeal before, read these rules from front to back at the start. You will likely refer back to the rules often throughout the appellate process.

For the appellant, the first step in any appeal is serving a notice of appeal. Rule 203 states that “a party intending to appeal must serve and file a notice of appeal,” and this notice “shall be served on all respondents within thirty (30) days after receipt of the written notice of entry of the order or judgment.”² This deadline is not flexible. Under South Carolina law, an appellant’s failure to serve a notice of appeal within 30 days after receiving written notice of the entry of a final order or judgment divests the appellate court of subject matter jurisdiction and will result in the dismissal of the appeal.³ Accordingly, if you miss this deadline, then your appeal will be over before it starts.

If a transcript of the underlying proceeding is necessary for the appeal, then the appellant must order a copy of this transcript almost immediately after the service of the notice of appeal. The deadline for ordering this transcript varies between 10 and 30 days after service of the notice of appeal, depending on which court was handling the underlying case.⁴ The appellant’s deadline for fling and serving his or her initial brief and designation of the matter to be included on appeal will be 30 days from receipt of the transcript or 30 days from the service of the notice on appeal if no transcript is ordered.^[5]

Once you’ve fled and served the notice of appeal, it is time to start thinking about which issues to raise on appeal. When deciding which rulings to appeal, avoid the shotgun approach. Most successful appeals focus on a small handful of issues. As a general rule of thumb, most appellate lawyers advise that any more than three or four issues is too many. Including weak arguments will only dilute your credibility with the appellate court. For the respondent, simply sit back and wait for your opponent’s initial brief to identify the issues on appeal.

Putting pen to paper

The most effective tool for advocating for your client on appeal is the written briefs submitted to the court. The briefs are the best opportunity to set forth your view of the facts and carefully lay out your arguments on appeal. Strive to make these documents the best possible representation of your client’s view of the case.

Good brief writing takes a lot of time. The importance of a well-written brief cannot be overstated. Under the South Carolina Appellate Court Rules, there is no guarantee that your case will be afforded oral arguments.^[6] Accordingly, the briefs may be your only opportunity to convince the court of the merits of your client’s arguments on appeal. Moreover, even if the court grants oral argument in a given case, there is no guarantee you will have time to address every issue raised in your briefs during the short time allotted for oral argument. In such a scenario, the briefs are the court’s only insight into why your client should prevail.

When writing a brief, remember that less is more. A brief should be direct and concise in laying out your client’s view of the facts, the controlling law, and how that law should have been applied or, if you’re the respondent, how it was correctly applied. The appellate court rules limit principal briefs to 50 pages and reply briefs to 25 pages.⁷ Do not feel the need to reach these limits. Remember that the judges and their staff review hundreds of briefs and records, so don’t waste their time with information or argument that is irrelevant to resolving your appeal. Avoid lengthy examples, voluminous case law without explanatory...