Appellate Practice and Procedure in Kansas: A Guide
by Ronald W. Nelson PA
Whether an appeal should be pursued is a complex and involved question and it is important that clients know all they can to make the decision right for themselves. We often hear from clients and other attorneys about the “need” to file an appeal because of a perceived improper ruling made by a court, administrative agency or other body charged with making decisions on important issues.
The attorneys at Ronald W Nelson, PA have extensive experience in handling appeals and in advising clients – and other attorneys – about the procedures involved in making an appeal, in deciding what issues are appropriate to appeal, and whether the value of appealing the decision balances with the cost of pursuing that appeal. Ronald W. Nelson, the principal of Ronald W Nelson, PA has handled over one-hundred appeals in both state and federal courts and frequently advises other attorneys about the appellate process.
Although many appeals are filed in state and federal courts seeking to overturn a decision perceived wrong, very few appeals actually result in a reversal of the trial court decision. Because of this fact, it is critical that anyone considering whether or not to file an appeal know everything involved in evaluating whether to file an appeal, the issues that are appropriate for appellate consideration, and how to frame the issues so that there is a better chance that winnable issues will be presented to the appellate courts.
Cost of an Appeal
One of the most important considerations in deciding whether to appeal a trial court decision is cost – and the cost of an appeal is usually much more than imagined. We are often asked why appeals cost so much money.
To answer this question, it is important to understand that the preparation of an appeal is much more than merely pointing out to the appellate court that the trial court made an incorrect decision. Most trial court decisions – and almost all domestic relations cases – are based on disputed facts presented by opposing parties, which requires that the trial judge determine which facts are more likely true than not true. This presents the first reason why appeals are costly: appellate courts are courts that determine whether there exists legal error.
Because the appellate courts decide only whether the trial judge committed an error of law, the appellate courts do not decide – or re-decide – whether the trial judge made the right “factual decision.” In deciding whether there is “legal error,” the appellate courts rely upon the trial courts to determine the applicable facts of a case by “sifting” the evidence and testimony presented so that the appellate courts don’t have to “rehear” those same disputed allegations. Only when the appellate court determines that the trial judge did not have any testimony or evidence sufficient to support a finding of fact will the appellate courts consider whether the facts determined by a trial judge are erroneous.
The second reason why appeals are costly is a matter of logic: it stands to reason that if one “impartial” decision maker has made a particular legal conclusion, that other impartial decision makers will likely come to the same conclusion.
In finding the best issues to present to the appellate courts, appellate attorneys must search out other similar cases that the appeals courts have decided and explain in written form why those cases are similar or different and why the proposed application of the law makes more legal sense than the decision made by the trial judge. Additionally, the way in which those issues are presented to the appeals court and making sure that the facts of the case are presented in an appropriate manner to the appeals court are all matters that must be considered and addressed.
Because what issues to appeal the decision whether to file an appeal is an important decision, our attorneys will review the case and try to help clients understand what factors should be taken into consideration before we will recommend whether to appeal a trial court’s decision.
When Judgments are “Final” for Appeal Purposes
Kansas statutes (KSA 60-258) provide that the entry of a judgment is subject to the specifications and requirements of KSA 60-254, which provides that no judgment is effective until a “journal entry” or “judgment form” is signed by the judge and filed with the court clerk. Because these statutes require that the judgment must be actually on file, the time to file an appeal does not begin to run (in civil cases) until that event occurs. When the “final” journal entry or judgment form is filed, then the time in which to file the Notice of Appeal begins to run.
Notice of Appeal
Kansas law provides that a Notice of Appeal must be filed within 30 days after the date on which the final journal entry or judgment form is filed. However, the filing of a “Motion for New Trial,” a “Motion to Alter or Amend Judgment,” a “Motion to Reconsider,” and certain other motions authorized by Kansas statutes may extend the time within which the Notice of Appeal must be filed. The Notice of Appeal is filed with the Clerk of the District Court. The filing of the Notice of Appeal is jurisdictional and if the Notice of Appeal is not filed within this time, the appellate courts will not consider the appeal timely.
Notice of Cross-Appeal
If the party defending against an appeal also believes the trial court erred, in order to raise those errors with the appeals court, that party must file a cross-appeal. Kansas law requires that an appellee must file a notice of cross appeals within 21 days after the notice of appeal was filed with the district court clerk. The filing of a notice of cross-appeal is jurisdictional. If an appellee does not file a cross-appeal, the appellate court cannot consider complaints of error by the appellee.
Docketing Statement Requirement
Within 21 days after the filing of the Notice of Appeal, a Docketing Statement must be filed with the Appellate Courts Clerk in Topeka. This Docketing Statement sets out the basics of the appeal, including a summary of pertinent facts, anticipated questions of law, and the applicable dates on which actions occurred in the trial court. The filing of the Docketing Statement is not jurisdictional; therefore, if the docketing statement is not filed within 21 days after the Notice of Appeal, the appellate court does not lose jurisdiction to decide the appeal and it may allow the appeal to proceed. The matters listed by the appellant as anticipated issues of law for consideration listed in the docketing statement are not binding, but are only for the summary information so that the Court has an idea about the nature of the appeal.
Documents Included with Docketing Statement
At the same time the docketing statement is prepared, a request for transcript is prepared (if there is any relevant transcript to prepare) and is served on the appropriate court reporter. This request for transcript must be attached to the Docketing Statement, together with certified copies of any judgments from which appeal is made, any post-judgment motions requesting modification of that judgment, and any orders relating to those post-trial motions.
Time within which Appellant’s Brief Must be Filed
If a transcript is requested, the appellant’s brief is due to the court of appeals 30 days after the transcript is filed by the court reporter. If no transcript is requested, if there is no transcript to prepare because the appeal is simply on the written record, or if the appeal proceeds on an agreed statement of the parties, then the appellant’s brief is due 40 days after the docketing of the case. One extension of time on the brief is normally granted pro forma. The appellate courts will give a maximum of two extensions of time to each appellant and appellee.
Time within with Appellee’s Brief Must be Filed
The appellee (the person defending the appeal) will have thirty days after receipt of the appellant’s brief in which to file a response. T the appellee may obtain extensions of time in which to file that response. The appellee may also request various additional documents be added to the record on appeal if the appellee feels the record is not complete or if there are documents in the original district court file the appellee feels may be cited in the Appellee’s brief.
Filing a Reply Brief
Finally, upon completion of the appellee’s brief, the appellant will have an opportunity to file a “reply brief” to the appellee’s brief if there is new material contained in the appellee’s brief – that is, if there is argument that could not have been anticipated by the appellant in preparation of the original Appellant’s brief.
Placement by Court on Calendar
Upon completion of the briefing, the appellate courts determine whether the case presents issue of unique or “new” law and whether the matter should be set on the oral argument or “summary” docket (in which case the appeal is decided on the written briefs without additional input from the attorneys or the parties).
At this time, the appellate process in Kansas (from the date on which the notice of appeal is filed until the filing of the initial decision of the appellate courts) is approximately 18 months.
For more information on How Kansas Supreme Court justices make decisions in cases, KWCH has this story.
See also Ronald W. Nelson, “Approaching the Appeal,” 34 ABA Family Advocate No. 4 (2014)
October 8, 2011 (rev January 15, 2015)