My divorce case was tried and I lost on a major issue. My lawyer was discussing the possibility of appeal. Please explain the basics about the time-lines for an appeal?
The first step is often to bring a motion for reconsideration. It may not be necessary to pursue this motion in an appeal but this issue alone is complex and should be discussed in detail with a lawyer experienced in appeals of divorce cases and knowledgeable about the law. A party generally has 30 days to file the motion for reconsideration. While the motion for reconsideration is pending, the time frame for filing the appeal is stayed. Once the motion for reconsideration is addressed, then the notice of appeal must be submitted within 30 days. This steps sets into course its own time-lines for steps that must be taken to pursue an appeal.
Does the lawyer need to be from the area in Illinois to represent a party to an appeal?
No. This is one of the few areas where obtaining a local lawyer has little or no benefit in pursuing an appeal. This is because an appeal does not require multiple court appearances for the work specific to the appeal. At most there is one court appearance when the appeal is argued and often the appellate court does not grant a request for oral argument and decides the cases based upon the record and the briefs.
What are the standards on appeal? Won’t I have the opportunity to present additional evidence that should have been presented during the trial?
There are several standards and in divorce cases the standards often range from de novo review, manifest weight of the evidence, and abuse of discretion.
Can you explain these standards fairly briefly?
A de novo review is a review like a new matter. It is the standard applied to pure questions of law. With this standard no deference is given tot the trial court’s decision. Accordingly, an Illinois appellate lawyer often will seek issues for which this standard would apply. Next, we have the manifest weight standard. It is the standard often applied to findings of fact made by a trial judge. The reviewing court gives significant deference to the lower court’s finding of fact because it is considered to have been in the best position to observe the conduct and demeanor of the parties and witnesses and has a degree of familiarity with the evidence that the appellate court does not have. The issue in this case is whether the opposite conclusion is apparent or when the findings by the trial court appear unreasonable, arbitrary or not based on the evidence.
Finally, we have the abuse of discretion standard. It is the most frequently applied standard and provides the greatest deference to the trial court’s decision. In fact that Illinois Supreme Court has described this standard in an overstated as “next to no review at all.” Nevertheless, the abuse of discretion standard should not result in merely “rubber stamping” the lower court’s decision.