Setting Your Record for Appeal

I have often said the trial court is merely a place for you to leave a footprint on your way to the appellate court. This has proven to be true time and time again especially where pro se litigants are concerned.

It doesn’t take a Nobel laureate to tell that there is a clear court bias against pro se’s. In fact it has been admitted by countless attorneys that this fact is true. It is not so much that the courts don’t like pro se’s because they draft nonsensical frivolous pleadings. I have seen judges toy with pro se’s in much the same way that a cat plays with a mouse just before killing it. Many if not most judges, in my opinion, feel that the courts are or should be reserved for legal professionals. It is an elite club where only card carrying members get to play. In other words if you want to know who prevails, it is a system of “just us”, as opposed to “justice”. As a pro se litigant you would do well to remember this fact.

The truth I have just described is all the more reason you must set a good record for your appeal. If you have never been to court at the appellate level, it’s a whole different ballgame compared to the trial court. “Trial court” meaning the first court of original jurisdiction, and in foreclosure matters this is usually a lower (justice/small claims) court. These courts are courts of limited jurisdiction and not usually a court of record. A court of record means that there is a court reporter in the court clacking away at a stenography machine.

The lower court’s jurisdiction (authority to hear a case) is limited in what subject matters the court has the authority to consider. For example if you go into an eviction hearing and you want to tell the judge that the party plaintiff is not a real party in interest, they are not the holder of the note, the security instrument is all messed up, or something along that line of argument you are spitting into the proverbial fan because these issues go to title, a subject matter that the lower court does not possess the authority to consider.

Some of the lower courts, if not a court of record do not provide a court reporter, while some of the lower courts do. Some of the courts that do not provide a court reporter will allow you to bring your own stenographer into court with you. However, court reporters don’t come cheap making it cost prohibitive for you to hire and bring your own.

I say most lower courts are not courts of record in regard to having available a transcript of what was said while court was in session. There is a record, but it is only the record of what paperwork was entered in the case. If you cannot afford your own court reporter, or the court will not allow you to bring a court reporter into court with you, you must make sure that you have plead out all of your elements succinctly so that there is no question as to what you mean to inform the court of.

The good news is that from a court of no record, the first step toward an appeal is a trial de novo, or new trial. Most states that call for a trial de novo from a court of no record have statutory provisions that allow new evidence to be offered to the court. This is a major plus since most times a litigant will have evidence that he has forgotten about or was not in possession of at the time of the first hearing.

It is important to get everything including the kitchen sink on the record in the new trial because if you loose in the trial de novo and you need to appeal, or if you prevail and opposing counsel files his notice of appeal, at the appellate level there is no new evidence allowed. You must rely on the strength of your pleading, and the evidence you placed on the record of the court in the new trial.

On appeal you will have to draft an appellate brief. This is a brief in where you go into greater detail regarding the issues and elements you raised in the trial court and the new trial.

Appellate court documents look quite different in the document style, format, and structure from motions and pleadings filed into the justice, county, or state district courts. The best place to find examples of how to properly draft and structure your appellate brief is the internet. Simply type into your choice of search engines the name of your state and the words “Appellant’s brief” and you should get several hits. Look for something that is prefaced by “[pdf]”. These are usually court documents that have been filed in a specific case. Open a couple of them and you will be able to tell right away if the document is what you are looking for. Helpful tips, if you copy a brief from a winning party you can rest assured that the style, format, and structure are correct and true to form.

Another indispensable body of statute that you as an appellant or appellee must be familiar with is your state’s Rules of Appellate Process. You can find your states Rules of Appellate Process on the Statutes and Rules page of Pro Se Foreclosure. Again the courts of appeals are different animals all together. They play by different rules and they are taken far more seriously.

If you think that you put issues and elements on the record of the lower court and that based on your facts, your evidence, and your arguments you should have won your case then by all means file your appeal. Be ready to pay an appeal bond. Most courts will assess an appeal bond in the amount of 1 year’s rent. If for example you had a house payment of $1200.00 per month you can expect your bond amount to be in the neighborhood of 12 times that or $10,000 $14,000.

If you could not afford a court reporter then it would go without saying that the bond amount would be cost prohibitive. If this is the case, as it usually is, you might want to look into something called a “supersedeas bond”. This is a type of surety bond that allows someone to appeal a judgment without having to post a cash bond in the full amount. Law recognizes the cost prohibitive nature of these high bond amounts and therefore allows provisions for a litigant to seek remedy even though he cannot afford the means to which he achieves his remedy. Most states vary in the requirements for such bonds so check in your state’s statutes for more details.

Good luck, and never quit. He who leaves the battlefield first looses.

Steve Skidmore

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