A party must act quickly to appeal an adverse judgment. Rule 3(a) of the Massachusetts Rules of Appellate Procedure requires that a Notice of Appeal be filed within 30 days with the clerk of the lower court. This is the most important deadline of the appellate process; an untimely filing of the Notice of Appeal is subject to dismissal.
After filing the Notice of Appeal the Appellant must keep the appellate process moving forward. A prudent appellate attorney should maintain a checklist of the various obligations and due dates to ensure timely compliance with the numerous rules and to docket the appeal in the Appeals Court as quickly as possible. That said, several delays can occur during the appellate process that are out of the Appellant’s control.
The first delay that Appellants often encounter is in waiting for the lower court clerk to assemble the record of the proceedings. This process can take weeks to months. Other than the Appellant’s obligation to provide a transcript to the lower court clerk, the timing of this step is out of the Appellant’s control.
The second delay that often occurs is during the briefing phase. Although Rule 19(a) requires Appellants to file their brief within 40 days of docketing the case in the Appeals Court, very often counsel need an extension of time to complete this step. Upon a motion showing “good cause,” the Appellant can seek an enlargement of time to file the brief and record appendix. This motion is routinely filed and allowed for extensions of 30, 45, 60, or 90 days. Similarly, the Appellee can file a motion seeking an enlargement of time to file their brief. The briefing step alone can extend the appellate timeframe by six months, if 90 day extensions are allowed for each the Appellant and Appellee.
The third delay occurs waiting for oral argument to occur. After the case is briefed, the parties wait until the clerk of the Appeals Court notifies them of oral argument. In general, when the appellee brief is due on or before February 1st, the Appeals Court schedules the case to either (i) oral argument or (ii) a non-argument decision, “during that court year” (which runs from September 1 until August 31). Thus, if the appellee brief is due after February 1st, oral argument likely will not be scheduled until sometime the next court year, which starts in September.
The fourth delay occurs after oral argument while waiting for the Appeals Court to release its decision. Under a Supreme Judicial Court Standing Order, the Appeals Court is required to “decide” the case within 130 days after either (i) oral argument or (ii) submission to a panel of the Appeals Court without oral argument. From my experience as a law clerk on the Appeals Court, the panel of judges often decides the case within 130 days and then the decision still needs to go through the editorial process before it is released to the public.
Of course, within 20 days of the Appeals Court issuing its decision, any party may file an application for further appellate review to the Supreme Judicial Court. See Mass. R. App. P. 27.1. The SJC reviews applications for further appellate review one time each month and any application filed in the middle or end of the month would be reviewed the following month. Thus, even if a party receives a favorable decision from the Appeals Court, they will likely wait another one or two months to learn whether the appeal will continue to the Supreme Judicial Court.
In sum, the entire appellate process often takes one to two years to complete. Although further appellate review is rarely granted, it would extend the appellate timeframe considerably. The above-described timeframe concerns a basic civil appeal from a judgment and does not address criminal appeals or Single Justice appeals. The lengthy timeframe should be considered when deciding whether to appeal a decision.
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