Citizen's Guide to the Nebraska Appellate Courts July 2009 NEBRASKA SUPREME COURT Office of Public Information I. INTRODUCTION his guide is designed to provide a self- rules established for the handling and progres- T represented person, or “pro se litigant,” with sion of cases through the appellate system. an overview of the Nebraska appellate court While it is our hope that the Guide will be a system. The creation of this material stems useful tool to assist the self-represented litigant from the need to ensure that the self-represented who wishes to pursue an appeal, this material litigant can effectively access the appellate does not replace the formal rules practice and system. By providing this information, we hope procedure of the Supreme Court and Court of the litigant will acquire a better understanding Appeals of the State of Nebraska which set forth of the structure and purpose of the appellate the Nebraska Court Rules of Appellate Practice system, how to effectively access the appellate and may be accessed via the Internet on the system, and how appeals are decided. Nebraska Judicial Branch Web site. Neither is Additionally, experience teaches that self- the Guide intended to be a substitute for the represented litigants may have unrealistic statutes and procedural rules which govern expectations about what the appellate courts appeals and which pro se litigants must consult can and will do, and that to their own detriment and follow—just as practicing lawyers are they do not always follow the procedural required to do. II. APPEAL tated simply, an appeal is an attempt by a to “perfect” the appeal. “Perfect” simply means S litigant to secure a different result in a legal that the necessary steps have been accomplished controversy, civil or criminal, than that ren- on time so that the appeal is properly before the dered by the trial court or administrative agency appellate courts. Perfection of the appeal will be which has already decided the matter after a discussed in more detail shortly. trial or hearing. To appeal, the litigant must take certain steps within certain time limits in order III. NEBRASKA APPELLATE SYSTEM e now turn to the two courts which make the two appellate courts, which is typically done W up the Nebraska Appellate System; by the Supreme Court “reaching down” into the however, the reader is cautioned that certain docket of the Court of Appeals to move cases to cases may require an intermediate appeal to the its own docket. The Court of Appeals can also district court before the case can be appealed to suggest that a case be moved to the Supreme the appellate system. For example, a misde- Court’s docket. See Neb. Ct. R. App. P. meanor criminal conviction in the county court § 2-102(C). The Supreme Court will move a must be appealed first to the district court. case, for example, if it believes that the issue Other than this cautionary note, intermediate presented is one which ultimately should be appeals to the district court are beyond the decided by the Nebraska Supreme Court because scope of these materials, and the applicable of the nature of the case. Although the Supreme statutes and procedural rules governing these Court has an internal process to identify appeals cases must first be consulted. which should be moved to its docket, the statutes The Nebraska Supreme Court and the allow a litigant to file a written request with the Nebraska Court of Appeals comprise the Clerk of the Supreme Court/Court of Appeals appellate courts of Nebraska. The seven- asking that the Supreme Court allow an appeal member Supreme Court, headed by the Chief to bypass the Court of Appeals and be heard and Justice, is the State’s highest court and is often decided directly by the Nebraska Supreme called the court of last resort. The Supreme Court. See Neb. Ct. R. App. P. § 2-102(B). Court has the power to regulate the dockets of Citizen’s Guide to the Nebraska Appellate Courts –http://www.supremecourt.ne.gov/self-help/ 1 The Nebraska Court of Appeals is a six- the trial court correctly applied the law, and judge court which includes a Chief Judge who when the trial court exercised discretion in its has administrative responsibilities for the decision, that such discretion was not abused. court. The Court of Appeals hears the majority The role of the Nebraska Supreme Court is of the appeals in Nebraska. All appeals except somewhat different. The Supreme Court tends those in which the death penalty or life impris- to decide cases involving issues which have a onment is imposed, those which challenge the broader impact in the legal system or are of constitutionality of a state statute, or limited great public interest. As a result, cases of this “original” actions as defined by the Nebraska nature are frequently moved from the docket of Constitution and by state statute are filed in the the Court of Appeals to the docket of the Court of Appeals. The mentioned exceptions Supreme Court to be decided. In this way, the are filed in the Nebraska Supreme Court and opinions of the Supreme Court assist in the processed from the outset in that court. development and clarification of the law for The fundamental difference in the roles of lawyers, trial court judges, and the public. the two appellate courts is that the Court of While handling fewer appeals than the Court Appeals is intended to be a court which han- of Appeals, the Supreme Court bears the addi- dles a high volume of cases. Its caseload typi- tional and substantial responsibility of oversee- cally involves cases in which only the parties ing the practice of law in the state as well as the involved are deeply interested. The basic func- administration of the entire judiciary of the tions of the Court of Appeals are to review State of Nebraska. decisions of the trial courts for errors in law or One result of this division of responsibility procedure and to correct those errors which between the two courts is that the six judges of have affected a litigant to his or her prejudice. the Court of Appeals decide the great majority Only errors which are prejudicial to a party or of the approximately 1,400 appeals filed each made a difference in the trial court’s decision year in Nebraska, but the cases decided by the are grounds for an appellate court to intervene. Supreme Court more often tend to have an In summary, in most of the appeals it hears, the impact which extends beyond the parties to the Court of Appeals looks primarily at whether case. IV. SIGNIFICANCE OF APPELLATE COURTS’ STANDARD OF REVIEW term which is much discussed and used by something the litigants must determine for A the appellate courts is “standard of re-view.” themselves by research—for example, by look- Standards of review are well-established ing at the opinions of the appellate courts in guidelines or standards for the appellate courts’ similar cases. As a matter of routine, the appli- analysis of the trial court’s decision and have a cable standard of review is virtually always substantial impact on the outcome of the clearly and separately set forth in the opinions appeal. The standard of review might be of both appellate courts. thought of as the lens through which the appel- Although the reader is reminded that this late court looks at the evidence presented to the Guide is not intended to cover all standards of trial court, as well as the decision of that court. review for all types of cases, there are some A pro se litigant’s awareness of the standard of general principles which can be stated and will review for a particular type of case is critical perhaps help highlight the importance of the because it bears on the initial question of standard of review in the appellate process. whether an appeal should be filed, which nec- Appellate courts reach their own conclusions essarily involves consideration of the chances on questions of law. In other words, the appel- of obtaining a different result on appeal. late courts need not interpret a law, such as a It is beyond the scope and purpose of this statute, in the same way as the trial court. Guide to set forth the different standards of However, as to factual disputes (who said what review for the various types of cases. That is to whom), appellate courts normally do not Citizen’s Guide to the Nebraska Appellate Courts – http://www.supremecourt.ne.gov/self-help/ 2 interfere with or change a trial court’s factual a divorce case or a case seeking an injunction, determinations unless the appellate court con- Nebraska law requires the appellate court to cludes that the trial court was “clearly wrong.” review the factual issues raised by the appel- When disputed questions of fact are reviewed lant’s assignments of error de novo (anew) on on appeal, an appellate court will rarely the record and reach its conclusions independ- “change” or reach a result different from the ent of the findings of the trial court. However, trial court’s factual findings. This is because even in such situations, the appellate court is the trial judge has the opportunity to actually often not inclined to reach different factual see and hear the witnesses testify, whereas the determinations, again because the trial court appellate court’s review is limited to the heard and saw the witnesses and believed one printed transcription of the testimony, some- witness over another.