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Key Differences Between Appeals in the Second Circuit and Connecticut’S Appellate Courts

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Key Differences Between Appeals in the Second Circuit and Connecticut’S Appellate Courts Key Differences Between Appeals WIG GI N AND DANA Counsellors at Law in the Second Circuit and Connecticut’s Appellate Courts by Erika L. Amarante and Kevin M. Smith Appellate Practice Group This publication is a summary of rules and cases. Nothing in this book constitutes legal advice, which can only be obtained as a result of personal consultation with an attorney. The information published here is believed to be accurate at the time of publication but is subject to change and does not purport to be a complete statement of all relevant issues. (c) 2007 Wiggin and Dana KEY DIFFERENCES BETWEEN APPEALS IN THE SECOND CIRCUIT AND CONNECTICUT’S APPELLATE COURTS by ERIKA L. AMARANTE AND KEVIN M. SMITH I. INTRODUCTION................................................................................................................... 2 II. PRE-APPEAL ISSUES ........................................................................................................... 3 A. Preserving Issues for Appeal............................................................................................ 3 B. General Verdict Rule........................................................................................................ 5 C. The Meaning of “Judgment” ........................................................................................... 6 D. Post-Judgment Motions.................................................................................................... 8 E. Perfecting the Trial Court Record ................................................................................ 10 F. Appealability ................................................................................................................... 12 III. THE APPEAL PROCESS ..................................................................................................... 16 A. To which Court do you Appeal?.................................................................................... 16 B. Time to Appeal ................................................................................................................ 17 C. Filing an Appeal as of Right........................................................................................... 22 D. Filing a Discretionary Appeal........................................................................................ 29 E. Extraordinary Writs....................................................................................................... 30 F. Stays Pending Appeal ..................................................................................................... 32 G. Appellee’s Responsibilities after Appeal is Filed ......................................................... 34 H. Designating the Record on Appeal ................................................................................ 36 I. Clerk’s Office Staff; Preargument Conference............................................................ 37 J. Motions Practice.............................................................................................................. 38 K. Briefs ................................................................................................................................ 40 L. Appendix.......................................................................................................................... 47 M. Amicus Curiae Brief ........................................................................................................ 48 N. Oral Argument................................................................................................................ 50 IV. POST-APPEAL ISSUES ....................................................................................................... 54 A. Opinions........................................................................................................................... 54 B. Further Stay of Proceedings .......................................................................................... 55 C. New Trials........................................................................................................................ 56 D. Post-Opinion Motions..................................................................................................... 57 E. Appellate Sanctions......................................................................................................... 62 V. CONCLUSION .................................................................................................................... 63 VI. INDEX OF AUTHORITIES ................................................................................................... 65 1 I. INTRODUCTION For Connecticut trial lawyers and appellate practitioners alike, understanding and keeping pace with the myriad variations between the federal and state appellate rules and procedures can be a daunting—but vital—task. How much time one has to appeal, when that time begins to run, and what is appealable, for example, differs depending on whether you are in state or federal court. The “Bible” for appeals in the United States Court of Appeals for the Second Circuit is the Federal Rules of Appellate Procedure (“FRAP”), as supplemented by the Local Rules Supplementing Federal Rules of Appellate Procedure (“Second Circuit Local Rules”). In Connecticut’s appellate courts (the Supreme Court and the Appellate Court), it is the Connecticut Rules of Appellate Procedure, as found in the Connecticut Practice Book (“P.B.”). Although many of the provisions in the FRAP and the Practice Book are similar—often even identical— the rules in both courts change regularly and contain a number of substantial differences that can serve as a trap for an unsuspecting lawyer. This article discusses the significant differences, as well as similarities, in procedures that practitioners should be aware of when pursuing civil appeals in these courts.1 By tracking the life cycle of an appeal, the article is organized in a manner that is intended to serve as a reference for analyzing issues that arise during various stages of an appeal. Section II addresses issues that arise before filing an appeal, such as post-judgment motions and perfecting the trial record for appellate review. Section III details the stages of an appeal, from filing the notice of appeal to briefing and oral argument. Section IV discusses issues that arise after disposition of the appeal, such as motions for reconsideration and petitions for a writ of certiorari to the United States Supreme Court. 1 The article does not purport to address every difference between federal and state appeals. For example, there are significant differences regarding each court’s caseload and docket. The Second Circuit has a larger docket than Connecticut’s appellate courts. From October 1, 2005 through September 31, 2006, the Second Circuit entertained 3794 appeals on the merits. See Administrative Office of the United States Courts, 2006 Annual Report of the Director: Judicial Business of the United States Courts, Washington, D.C.: U.S. Government Printing Office, 2007. During the 2005-2006 court year, the Connecticut Supreme Court decided 134 appeals and the Connecticut Appellate Court resolved 496 appeals, for a total of 630 appeals in the state appellate system combined—less than one sixth the number of cases disposed of by the Second Circuit in the same time period. See Wesley W. Horton and Kenneth J. Bartschi, 2006 Connecticut Appellate Review, 81 CONN. B. J. 8, 23 (2007) (hereinafter “Horton and Bartschi”). 2 II. PRE-APPEAL ISSUES A number of issues arise during the pre-appeal stages of a case that are critical to the success of any appeal. For example, whether the appellate court will review a particular issue and what standard of review the court will apply may be greatly affected by the adequacy of the record created at trial. Issues that are not properly preserved at trial may be unreviewable on appeal. Furthermore, post-judgment motions, which are filed with the trial court, can affect both the issues that can be raised on appeal as well as the timeliness of a subsequent appeal. As the following discussion details, there are a number of key similarities and differences during this pre-appeal stage between the practices in the Second Circuit and those in Connecticut’s appellate courts. A. Preserving Issues for Appeal The Connecticut appellate courts and the Second Circuit have refused to entertain issues on appeal that were not properly raised in the trial court.2 Therefore, a savvy trial attorney must consider the prospect of an appeal when preparing for trial and during the trial itself. The standards for determining whether an issue has been raised below—and, therefore, is properly preserved for appeal—are similar in the Connecticut appellate courts and the Second Circuit. For instance, in the Second Circuit (as in most federal appellate courts) the general rule is that an appellate court will not entertain a claim or issue on appeal unless it was “pressed or passed upon below.”3 This means that the parties and the court were made aware of the claim or issue, even if that claim or issue did not actually serve as the basis for the district court’s determination.4 The Connecticut appellate courts apply a similar general rule, addressing issues on appeal only if they were raised, even if not necessarily decided, in the trial court below.5 Adding another layer to the preservation analysis, the Connecticut Supreme Court generally will not entertain issues on certification
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