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Appeals: A Second Bite at the Apple.

Tonight's post on Appeals was written by our Lawrenceville and Gainesville family law attorney, Jennifer McCall.

We have had potential clients consult with us after they had lost their trials. They were understandably unhappy with the final outcome of their cases. Tonight, we'll talk about one potential client. We will call our potential client Sam. Sam wants to appeal.

It makes sense that Sam would call our office for an appeal. Sam did some internet research for family law appeals and came across numerous articles about our firm. Most family law attorneys have little to no experience appealing family law cases. Our founding attorney, Michael Manely, has not only won decisions before the Georgia appellate courts, but has also has won a unanimous decision on a case he argued before the United States Supreme Court.

We tell Sam that if the case needs an appeal, our firm is able to handle it; however, I find that most potential clients, Sam included, don't really understand what an appeal consists of. Sam believes that an appeal is the ability to have a new trial in front of a new judge based on all the same evidence presented at the first trial. Sam admits to not having any new evidence. Sam believes that the judge's mistake was believing the lies of the other party and this mistake is enough for an appeal.

When a case is appealed, the parties' attorneys submit research-intensive briefs with copies of the trial transcript. Even though the documents are called "briefs" they are actually quite lengthy. Appellate courts are looking for legal and technical errors. Did the judge make an incorrect ruling on whether evidence was admissible or not? Did the judge fail to make findings of fact where the law requires it? Did the judge forget to make the requisite preliminary findings before moving onto the next question in the inquiry?

If all the judge did wrong is that she believed the wrong person, an appeal will not be successful. The appellate courts give trial courts a lot of discretion to decide the credibility of the parties and witnesses and to make decisions based on findings of fact. The appellate court is reading a cold transcript whereas the trial court judge observed the live trial. Trial judges are permitted to make mistakes here.

However, if the judge misapplied the law, Sam might be successful in obtaining an appeal. Before ordering or denying legitimation, did the judge forget to consider whether there was support to the minor child in the preceding years? In deciding whether or not to award alimony, did the judge forget to consider the length of the marriage? The appellate court can remand the case and have the trial completed again with instructions.

Whether the appeal you are seeking is based on findings of fact or misapplication of law determines how likely you are to be able to win an appeal. It is critical to consult with an experienced appellate attorney. Appeals are not for the faint of heart. It is also essential to do so quickly because the time in which to appeal is very short.

Even if Sam is right that the judge misapplied the law, if he doesn't act quickly enough, it might be too late to appeal. And that is trully adding insult to injury.

Jennifer McCall

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