APPEALS AND POST-CONVICTION REVIEW

All court cases seem to be subject to what litigators call the "80-20 Rule".  The 80-20 Rule says that 80% of the time you've got a slam-dunk case, you will win, but conversely, you will inexplicably lose that same sure-thing case 20% of the time.  Likewise, if you've got a case with no hope of winning, 80% of the time you will lose that case as predicted, but 20% of the time you'll win the case against all odds.

If you've lost traffic (or related) case and are not happy with the outcome, you've got two legal options: appealing the ruling to a higher court, and/or filing a motion with the traffic court for post-conviction review of your case.

Appeals

Appeals can be used to challenge the legality of your conviction (that is, you can ask for your conviction to be overturned and your case dismissed), the legality of your trial (that is, you can ask for a new trial), or the legality of your sentence (that is, you can ask to be resentenced).  Appeals generally go to the next higher court, but sometimes the appellate path is more circuitous.  For example, Colorado judicial rules require that a traffic case heard in County Court be appealed to the District Court, which is the court directly above the County Court.  Seems straightforward enough.  However, if you then appeal that same case from the District Court, you must skip over the Colorado Court of Appeals (which will disavow jurisdiction over your case) and appeal directly to the Colorado Supreme Court.  Because traffic infraction appeals are so rare, your local court clerk will generally not be aware of this rule, so be sure and do your own research.  In general, you'll need to put a Statement of Jurisdiction in your appeal somewhere to explain why the court to which you're appealing has jurisdiction (see below), so some quick research on this topic prior to filing an appeal is time well spent.

Appellate Standard of Review

It's important to be aware of the standard of review that the court will be using when it reviews your appeal.  The standard of review is the amount of deference that the appellate court will give the lower court's findings (that is, the court's determinations on factual questions) and holdings (that is, the court's determinations on legal questions).  A higher standard of review simply means it's less likely that the appellate court will overrule the lower court.

You'll need to craft your appeal brief to convince the appellate court that the relevant standard of review has been met in your case.  In general, you should be aware that appellate courts are unlikely to overturn a lower court based on factual findings alone, unless the lower court judge actually abused his or her discretion (see: the abuse of discretion standard of review).  In contrast, questions of law (for example, how the lower court interpeted the laws in question, or how it interpreted other, higher court decisions relevant to that law) have a more liberal standard of review, and are thus much easier to successfully challenge in your appeal.  It's generally a good idea to explicitly argue that the standard of review was met in your case; if you decide to challenge findings of fact, then state that the lower court judge abused his or her discretion, and do your best to build an effective argument to that effect.  The last thing you want is for your appeal to be dismissed because the higher court wrongfully categorizes you as just another guy without a lawyer who doesn't understand standards of review; appellate court clerks spend a large percentage of their time drafting generic opinions which explain that high courts are very reticent to upset findings of fact, and accordingly, will not be doing so for this case.

The Nuts and Bolts of an Appeal

Appellate rules differ greatly from one jurisdiction to the next, so you are strongly advised to check your local rules before filing an appeal.  The court clerk for the appellate court should be able to tell you what forms need to be filed, how many copies of the form need to be filed, and by when the forms must be filed.

Beginning Your Appeal

The first step in most jurisdictions is to file a Notice of Appeal (a short form which contains some basic information about you and the case you're appealing, and sometimes a brief statement summarizing your reason(s) for appealing; see below).  You may also need to file a Designation of Record form, which tells the lower court to begin preparing a court transcript and other records to be forwarded to the appellate court (sometimes combined with the Notice of Appeal; see below).  Here, it's important to request any items you think the appellate court will need to rule on your appeal, including any relevant exhibits, judgments and orders of the court, and jury instructions if you had a jury trial.  In general, both the Notice of Appeal and Designation of Record are very easy to fill out.  However, be aware of whom you are required to send copies of these forms to.  For some appellate documents, the appellate court will need some number of copies between one and fifteen, but the lower court may also need some number of copies, and you'll probably also need to mail a copy to the District Attorney or other adverse party.  And as always, bring an extra copy of anything you file with the court so that you can have them stamp a filing time on your copy as proof of your filing.  Once you file the Designation of Record, the lower court reporter is then responsible for getting the record to the appeals court in a timely manner (although don't count on this; see sample Motions to Accept the Record Out of Time below!)

Once the trial court's decision has been entered for your case, you generally have some limited number of days to file your Notice of Appeal.  These deadlines vary quite a bit by jurisdiction and which level of court you're appealing to.  Due dates for supplying the designated record can also vary quite a bit from one place to the next.  In some jurisdictions, the record is due on the deadline for filing the appeal.  In other jurisdictions, you might have 6-9 months to get the record to the higher court.

Appeal Bonds

When you file your Notice of Appeal, the lower court will often ask for an Appeal Bond.  These bonds can be pricy as you move up the appellate court ladder, often ranging up into the hundreds of dollars once you get to the Supreme Court or your state's equivalent.  In a normal civil case, these bonds serve as a guarantee that if the party putting up the bond loses the case, the other party will still get the money they are owed.  In the case of traffic infractions, however, this is a farce, because by the time you've appealed you've generally already paid your fine and the government is thus not in any danger of not collecting their money.  In such cases, the appeal bond is basically just a county- or city-level scheme to rake in more money.  Further, since it's the trial court judge (the doofus in a black robe whose decision you are appealing) who sets the appeal bond amount, it can take the form of a punishment for, or impediment to, questioning the judge's wisdom.

In summary, always ask if the fine you already paid can be used in lieu of an appeal bond! Some jurisdictions will waive the Appeal Bond for criminal cases, but others will reinstate it for "lesser offenses" like traffic infractions.  In theory, you can get some or all of this money back after your appeal... but do you really want to be in a position of trying to reclaim money from the same court that railroaded you in the first place?)

Timeline: Part 1

Once your appeal is filed, you should receive docketing (scheduling) information from the appellate court telling you when your appeal brief is due, along with any other important due dates.  Some of these time limits will be set by law or by judicial rules, while others are set by the judge and may have more flexibility.  The appeal brief itself contains numerous parts which vary significantly by jurisdiction.  Ask the appellate court clerk for an example appeal brief that you can use to determine what sections you'll need to include.  Beware, an unhelpful clerk may just point you a law library and leave you to fend for yourself.

Low Court Appeal Briefs

Lower court appeals are generally provided by right (that is, at least one next-level court often must hear your appeal regardless of how busy they are).  This means that some of the sections discussed below will not be required.  Check your local appellate rules or search for a sample appeal brief from the court you're targeting to make sure. In any case, while lower-court appeals don't require as much intellectual or judiciary "sex appeal" (see below), they still need to make every bit as compelling as compelling an argument as a high court appeal.  Remember, a lower court may be much more likely to seriously consider your appeal than an overworked high court.  If you don't bring your "A-game" at this stage of the appeal process, you may not even get a chance to play again, so don't skimp on research or hold anything back!

This is not to say you're completely screwed if you lose your first appeal.  Even if you have a winning case, it may take multiple appeals!  Take rural Colorado, for example, where the District Court judges are often the same judges that, one day a week or so, will preside over traffic cases in the lower court.  If your Colorado traffic court judge seems more interested in giving your money to his employer than in whether you actually did anything wrong, don't expect a successful appeal at the District Court level, as this would involve a District Court judge overturning one of the judges he or she works with each day (and finding in favor of a Defendant in a traffic case, which may well run against that judge's grain!)

In a situation like this, you may have to go through the motions of filing a District Court (or equivalent second-level court) appeal, probably losing without ever having a real chance, and then appeal that to the state Court of Appeals or Supreme Court (see above, it can vary) to have a hope of a fair review.  The judges in these higher courts are paid by the state, not your local city or county, and so they've got no vested interest in you losing and having to hand over money to said local city or county (versus the local court, where you're pretty much playing a football game where the referee is on the payroll of one of the two teams).  Also, the higher-court judges will typically have a little more accountability to make sure arguments are considered and proper procedures are followed, and aren't as worried about stepping on the toes of a traffic court judge.

High Court Appeal Briefs

Once your appeal reaches the Supreme Court level (whether the highest state court, or the one in the fancy stone building in DC... or if you're in New York, the "Court of Appeals", which oddly enough, is the name of the highest court there), you are no longer appealing, you are "petitioning the court for a Writ of Certiorari".  Fancy words, but it's basically still just an appeal.  If the court grants you a Writ of Certiorari, it means they will take your appeal and review your case.  So at this point, you're basically asking them to hear you out.  Drafting a good "petition for cert" is an art form.  Some of the commonly-required sections of this work of art are discussed below.

The Anatomy of an Appeal Brief/Petition for Cert

The following sections may or may not be required in your jurisdiction.  Also note that your jurisdiction could require additional sections (e.g., a table of authorities that lists all the cases your brief or petition made reference to, sort of like a bibliography of cases) that are not described below.

Jurisdiction

This section is usually just boilerplate stuff unless your case has a strange procedural history or something else exceptional going on.  Here, you need to state that the court to which you are appealing has jurisdiction because of appellate rules w, x, and y, and because of section z of the constitution.  Search the web for an appeal brief or petition for cert filed with the court to which you are appealing.  Copy their jurisdictional stuff, and carefully look up any cited rules to make sure they're relevant to your case.  You'll get more help and ideas from a case which is similar to your own (so aim for a minor criminal case, and don't pick a divorce or labor union arbitration appeal!)

If you had to motion for any time extensions for this appeal, mention them here, and explain that they were granted and that your filing is taking place during the granted extension period.    If you didn't need an extension, then just explain that your filing is timely filed according to the statutory deadlines for your locality.

Issues Presented

This section is your opportunity to make your case seem interesting to a bunch of jaded old people (and their clerks!) who do nothing but read appeals all day.  Certainly, be direct and honest about the issues in your appeal, but remember, a thought-provoking "Issues Presented" section at the beginning of your petition is what will grab the eye of the clerk screening the petitions, and later, his or her boss (the judge).  Try to keep your questions concise, but with enough detail that the question can stand on its own.  But perhaps most importantly, describe your issues so they are generally-applicable!  Remember, sad as it may be, an American high court is not in the business of righting injustices.  It has far more cases than it could ever handle, and so only a small subset are chosen which can be used to resolve a long-standing conflict over, or misinterpretation of, existing law or precedents.  The more your appeal appears to relate to broader issues and situations, the more likely it will be heard by the high court.

The Decision by the Lower Court

In many jurisdictions, the decision that you are appealing must be included in your filing to the higher court.  It's common practice to insert a brief section to make reference to this inclusion, and label the cover page as a "Appendix A."

Statement of the Case

This section should be a factual statement that gives an objective and detached overview of the facts of your case and its legal history.  Do not attempt to offer any subjective opinions in this section, just undisputed facts.  If a fact is in dispute, say so!  The fact that a fact is in dispute is, itself, an undisputed fact.  (And if that last sentence actually makes sense to you, perhaps you should consider joining the legal profession at earliest convenience.)

You'll also need to explain (again, objectively) the arguments that were presented before the lower court, and how the judge ruled.  Remember, focus on the facts and arguments relevant to your appeal.  The fact that you spent 20 minutes cross-examining the ticketing officer about whether he used to be a lady, while entertaining, is not of interest to the appeals court unless it is directly relevant to your appellate arguments.

Arguments

Each argument should begin with a concise, yet complete and encapsulated, summary of what is being argued therein.  These summaries should be in all-capital letters.  (This may be because high court judges are typically quite old with failing vision; since the summary is the only part they actually read, it must be in caps.  I'm kidding here... sort of.)

Each argument should cite all the relevant laws, regulations, and precedents underlying the argument.  Each such law and decision should be summarized as it is introduced.  See the samples below for an idea of what I mean.

Important note: Cite non-binding precedents (for example, precedents from outside your state when you're appealing to a state court) with caution!  If you're dealing with a previously-unlitigated issue, and some court in a state 2,000 miles away had some highly-compelling logic which clarifies things, then by all means cite it.  But in general, citing non-binding precedents is a great way to make yourself look ignorant about fundamental aspects of the law.

Conclusion

The conclusion is generally pretty formulaic, e.g., "For the foregoing reasons, this Court should grant (this appeal/this Petition for Writ of Certiorari)."  This is then followed up with a separate paragraph which is just something along the lines of "Respectfully submitted this 7th day of April, 2003" followed by a line for your signature.

Certificate of Service

As with the overwhelming majority of other traffic case filings, you are required to serve the opposition (either the District Attorney, or the cop, depending on who takes the role of 'prosecutor' in traffic cases within your jurisdiction) with a copy of your brief/petition.  This section basically documents your affirmation that the other party has been served with a copy.  The copy that is sent to the opposing party need not be signed, or stamped by the court clerk.

Note: Some courts will allow you to specify whether you wish to have an opportunity to present oral arguments.  This choice is sometimes made in the Notice of Appeal, or could be its own section in an Appeal Brief.  While this request is rarely granted by high courts, it's a good opportunity to further your case by addressing the appellate judges' questions and concerns.  However, it's only advisable if you've really done your homework and are conversant in the underlying law and precedents without having to rely heavily on your notes, otherwise you may just hurt your case.


Timeline: Part 2

After you file your Appeal Brief, the prosecutor will often file a Motion for Dismissal.  Judges have a nasty habit of going along with prosecutorial motions like this without really scrutinizing them, so it is crucial that you respond by filing a "Reply to Motion to Dismiss Appeal" document like this one which shoots down the prosecutor's arguments in order to prevent dismissal.

Once preliminary motions (if any) are out of the way, the prosecutor will file a Reply Brief refuting the arguments in your Appeal Brief.  If you think that your arguments speak for themselves and the prosecution makes a weak case, you can sit tight and wait for the court's decision.  However, if the prosecution has raised any new arguments you need to refute, you can file a Surreply Brief within a few days of the Reply Brief.  Of course, the prosecution can then respond with a Sur-Surreply Brief to get the last word, to which you can again respond, etc., etc. until your case turns into something out of a Dickens novel.

POST-CONVICTION REVIEW

In contrast to appeal, which is addressed to a higher court, Post-Conviction Review is a process by which you can petition the trial court for reconsideration of the outcome of your case.  It's remarkably similar to an appeal, except instead of a higher court, it's directed at the same court in which you had your hearing.  In some jurisdictions, it can only requested using a standardized form with very little resemblance to an appeal brief (presumably to make the process more accessible to incarcerated criminals without legal representation) except for the actual arguments for why your case should be overturned.  Note that some jurisdictions have time limits within which you must file a petition for post-conviction review.  Be mindful of these limits, and if you exceed them, be prepared to make a case for why your lateness was justifiable in your petition.

SAMPLE APPEALS AND POST-CONVICTION REVIEW PETITION

Appeal Example No. 1

Document: Notice of Appeal
Overview: The Notice of Appeal is a very short, formal document which lets the relevant courts know you'll be appealing.  It does not contain any arguments or state your grounds for appeal, although in some courts (see higher-court examples below) a very brief summary of your grounds for appeal is required.  Generally, you'll file your Notice of Appeal with the court to which you are appealing, along with filing a single advisory copy with the court whose decision you are appealing (I like to write "ADVISORY COPY" on the top of the first page so as not to confuse any of the lower-court yocals).

Document: Designation of Record
Overview: The Designation of Record on Appeal is a short document which identifies which records you'll be needing for your appeal. When you file this (or your jurisdiction's equivalent form) with the lower court clerk, the records you have designated will be copied by the court recorder and sent up to the higher court.  Generally, after filing the Designation of Record, the lower court clerk will communicate the estimated time it will take for the records to be prepared and certified.

Document: Appeal Brief
Overview: This appeal brief was used to appeal a traffic court decision to the District Court of Colorado.  The brief relates to a trial court judge's refusal to grant a motion for summary judgment.  In Colorado, the Manual on Uniform Traffic Control Devices (MUTCD) has been adopted by the Colorado legislature, and MUTCD does not allow municipalities to lower the speed limit on a road without first conducting a "speed study".  At trial, the defendant in this case provided clear evidence that no record of a speed study for the road in question was on file with the County Engineering office (the organization responsible for conducting speed studies and setting speed limits), and despite the prosecution offering absolutely no evidence at all to the contrary.  This brief argues that the judge was plainly in error in denying the motion for summary judgment, since the evidence presented by the People clearly did not support, beyond a reasonable doubt, that the defendant exceeded a reasonable and prudent speed under all attendant conditions.
Comments: According to the author of this brief, he attempted to frame the relevant issues as a matter of law, not fact, so as to avail himself of a lower standard of appellate review.  However, he still makes a claim that the judge committed manifest and legal error which was prejudicial to Defendant, and that the weight of the evidence was clearly in the Defendant's favor, so that if appellate court believed the underlying issue was more factual than legal, the appeal wouldn't be denied for simply failing to allege that the judge's error met the relevant standard of review.  The importance of understanding the relevant standard of review for your appeal cannot be understated!  Read about the various standards of review here.

Document: State Supreme Court Motion for Extension of Time
Overview: This is a very typical motion for an extension of time due to life getting in the way of court filings, as it so often does.
Comments: Generally, unless you've seriously blown a deadline, it's not hard to get your appeal back on track by filing this type of motion, especially when you are not an attorney.  The use of terms like "unavoidable" and "unintentional" tends to help a lot.  Another key thing is to state that you've done everything in your power to get things back on track, and filed as soon as you possibly could.

While extensions are generally granted for "good cause", some jurisdictions do have statutory limits on how long an extension can be granted even with good cause.  If it's been an excessively long time since the decision you're appealing, do your homework and make sure a filing deadline extension is still legally possible for the court to grant.
A note on motioning for an extension: whenever you ask the court for an extension, be it because of a blown deadline or a deadline that will probably be unavoidably missed, you must explicitly specify how much extra time you want!  Appellate-level courts will not grant open-ended extensions, nor do they like pulling numbers out of a hat that they think will suit your situation.

Document: State Supreme Court Motion to Accept the Record Out of Time
Overview: This is generally just a boilerplate document that repeats the lower court's estimate on when it can have the record ready for appeal.
Comments: As redundant as it may seem with the motion for extension of time, this type of motion often required by high courts.  Generally, you wouldn't file this type of motion until your motion for extension (see above) was already granted, and the appeal docketed by the high court clerk.

Since you are ultimately responsible for ensuring delivery of the trial record, and yet you're relying on government employees to get it there so your appeal doesn't get dismissed, always err on the side of filing a Motion to Accept the Record Out of Time when you're close to a deadline, no matter how many guarantees of anticipated timely delivery you get from the lower court clerk!  Besides the fact that it's just generally a bad idea to trust government employees with anything that's actually important (would you ride in an airplane designed by the government? Or take a drug designed by the government? Me neither!) the Motion is usually a quick one-page form that can often be mailed to the court.

Document: State Supreme Court Petition for Certiorari
Overview: This petition for certiorari was filed as part of an appeal to the Colorado Supreme Court.  It raises several questions for that court to answer, including:

• Does the state's Open Records Act create an affirmative duty to create and maintain current records connected with a subject agency's activity  (Put less delicately, can the government willfully lose or destroy government records in order to screw defendants?  Unfortunately, in Colorado, the answer turned out to be "yeah, sure, why not?")
• If an agency retains no records of a statutorily-required traffic engineering study, is the statute still satisfied?
• Given the standard of proof in criminal matters, should inferences made about the underlying activity described by missing records favor the Defendant or the People?
• In a criminal matter where the government's loss or other inability to account for records of an alleged event is established, should the burden of proving that underlying event occurred rest on the People?

Appeal Example No. 2

Document: Notice of Appeal
Overview: Again, just boilerplate stuff here. Your local forms may differ, so check with the court clerk!

Document: Designation of Record
Overview: The preprinted items are boilerplate information which should always be requested.  The freeform part (i.e., item 6 and beyond) is where you request additional items.

Document: Appeal Brief
Overview: This brief was used to appeal the trial court decision to the Colorado District court.

The first major argument relates to the fact that a non-sensical and incorrect statute number was written on the traffic ticket by the officer, and thus the Defendant was not given proper notice by the charging document. As a result of this substantive defect, the brief argues that the traffic court was deprived of subject matter jurisdiction over this case.

The second major argument is that the subpoena duces tecum, filed in place of a motion for pre-trial discovery (which Colorado county courts disallow to streamline the bilking of motorists; see third argument, below) was improperly denied, and further, that despite being properly served with the subpoena, the officer neglected to bring the vast majority of the listed documentation with him to court.  This left the Defendant completely unable to conduct a meaningful cross-examination or otherwise defend himself.

The third argument was that Rule 8 of the Colorado Rules for Traffic Infractions is unconstitutional, and exacerbated the defects of the trial.

This appeal ended up being denied, but not because of any of the issues it raises.  (See Motion for Reconsideration, along with higher court appeals, below.)

Comments: These arguments would probably have been slightly more effective if they'd been written in the third-person, e.g., "the charging document did not give Defendant sufficient notice" instead of "the charging document did not give me sufficient notice".  There are definitely some cases where it may help to appear unskilled in the law (e.g., when you're asking for an extension because you slipped up and missed a deadline) as part of your legal prose, but I would argue that an appeal brief is generally not one of them.  On another note, the third argument is quite underdeveloped; the author explains that he added it as a hook to challenge the constitutionality of the much-maligned no-discovery judicial rule in a high court later on.

Document: Motion for Reconsideration of Denial of Appeal
Overview: The previous appeal was denied because the Defendant accepted a plea bargain.  However, the Larimer County trial court judge promised the defendant the ability to appeal despite accepting a plea bargain.  Since this is not allowed under Colorado law, this motion and the appeals which follow relate to asking for the plea, which was not knowingly and voluntarily entered, to be withdrawn.
Comments: A Motion for Reconsideration like this one can be used as sort of a "mini-appeal" to the same-level court.  It's generally useful when the judge didn't understand (or didn't bother to understand) an important argument, or in rare cases like this one, to bring up a new argument.

While described as a "can't-lose argument" based on "manifest injustice" by several area law professors, this motion and subsequent appeals were ultimately denied at every level of the Colorado judiciary.  This outcome, in light of the fact that the trial court judge clearly, repeatedly, directly misinformed the Defendant as to his rights, anti-defendant Colorado's courts are, and how fickle the Colorado appellate courts can be in their selection of cases to take.  Yet, the Defendant in this case ultimately prevailed, which illustrates that if you wish to appeal your traffic case, it's best mentally prepare yourself for a long haul -- the path to receiving justice is not always a short one!

Document: Court of Appeals Notice of Appeal
Overview: A Notice of Appeal at the Court of Appeals level contains more substance than the lower court Notice of Appeal examples above.  See comments below.
Comments: In many jurisdictions, a Court of Appeals-level Notice of Appeal must include an advisory listing of the issues to be raised on appeal (a very brief summary of your intended arguments).  Also, you'll generally need to state whether or not you are requesting a pre-argument conference with the Prosecution in the presence of a judicial official.  This is a confidential proceeding for the purpose of considering settlement, or to simplify the issues under appeal.  Generally, you'd only request such a pre-trial conference if you were still hoping for a plea bargain from the prosecution, since trying to horse-trade legal issues with an experienced litigator is generally inadvisable.

Note that, at this appellate level, the Designation of Record is incorporated into the Notice of Appeal, whereas at the lower court level, a separate document was used.  As always, if no standardized Notice of Appeal form is available from the court to which you are appealing, check with the clerk to find out what sections are required, or ask for the clerk to point you to an exemplary filing in your jurisdiction.

Document: Court of Appeals Appeal Brief
Overview: This appeal relates to the District Court's denial of defendant's motion to withdraw the plea after finding the Defendant had no right to appeal.  In this case, the trial court repeatedly misinformed the defendant such that he entered a plea without being aware of his loss of legal rights.  This appeal brief raises only a single line of argument: that a plea must be intelligently and voluntarily made to be valid, and that since the trial court repeatedly and directly misinformed the Defendant, his guilty plea was both involuntarily and unknowingly entered into.  The brief invokes several binding Supreme Court precedents which establish that when a Defendant has been lied to about the consequences of entering a plea, that plea cannot stand.
Comments: In Colorado, a case which originates in County Court and is then unsuccessfully appealed to District Court then skips over the Court of Appeals, and goes right to the Colorado Supreme Court.  In many ways, this tramples the rights of the Defendant, who has no appeal-of-right in a court outside his local area.  This can create serious injustice in the case where the local judges are corrupt, since judges outside the Defendant's county are not obliged to hear the Defendant's appeal.  As a result of the Colorado judicial rules laying out such a path of appeals, this appeal was dismissed for lack of subject matter jurisdiction.

In any case, many other states do allow traffic case appeals to be taken to the Court of Appeals, and so this brief is included as an example of the sections and formality that may be appropriate for such an intermediate-level court.

Document: State Supreme Court Designation of Record
Overview: This Designation of Record is fairly self-explanatory.  It is similar to the county-level Designation of Record document, only a bit shorter since it does not use a standardized form.

Document: State Supreme Court Motion for an Extension of Time
Overview: Another Motion for an Extension of Time for filing an appeal.  This motion was granted by the Colorado Supreme Court.
Comments: Here, the use of first-person language may have been helpful for eliciting the court's sympathy for an average Joe unrepresented by an attorney.

If ever find yourself needing to lean even more heavily on playing the "I'm not a lawyer, I didn't know!" card, you can very neatly hand-write this type of motion (but unless you're fantastic at writing convincing prose on-the-fly, use a word processor to perfect the wording of the motion first).  No attorney would ever hand-write a motion, so every page just screams "I didn't know any better, but I'm trying!" to the court.  I have successfully used this approach twice, but reserve it only for very badly-blown judicial deadlines.

Document: State Supreme Court Motion to Accept the Record Out of Time
Overview: Again, pretty customary.  Nothing special here, these motions are routinely granted.

Document: State Supreme Court Petition for Certiorari
Overview: This petition for certiorari was used in an appeal to the Colorado Supreme Court.  It raises several questions for that court to answer, including:

• If a trial court judge directly and repeatedly misinforms a Defendant as to whether Defendant's guilty plea will cause forfeiture of a right to appeal, is that guilty plea is "voluntary"?
• Is such a guilty plea "knowing"?
• Is such a guilty plea is a violation of defendant's due process rights, and thus invalid?
• Should a Defendant who has entered such a guilty plea be allowed to withdraw it?

Why No Supreme Court of the United States examples?

The reason I don't have any examples of Supreme Court of the United States (SCOTUS) filings is that none of the readers of this page have yet appealed a traffic case this high and let me know about it.  However, should you wish to appeal your case to SCOTUS, here are some suggestions.

You can appeal a case from your state Supreme Court to SCOTUS only if the case concerns a federal question, that is, a specific issue (e.g., violation of a constitutional right) that gives rise to federal jurisdiction.  Issues of state law are thus only appealable here if they infringe on rights guaranteed at the federal level by the US constitution.

Substance, tactics, and the basic framework of the Petition for a Writ of Certiorari are fundamentally similar to a state Supreme Courti appeal.  However, keep in mind that SCOTUS has the additional responsibility of making sure the Constitution is interpreted consistently across the country.  As such, if you can successfully argue that the laws of your state are inconsistent with a previous SCOTUS ruling, or another state's or federal circuit's interpretation of the Constitution and/or a past SCOTUS ruling, this may increase the chances of your petition being granted, and your case being heard.

Likewise, any help you can round up from organizations which do judicial activism (e.g., legal assistance, amicus briefs, etc.) from groups which promite the rights of motorists, or civil rights (e.g., the ACLU), will very much help the chances that your case will be considered for cert.  Once a group like this brings the "big guns" in, your case can really pick up some traction and take off.  However, these types of organizations have limited resources.  Send them a cover letter very succinctly explaining your case and what is at stake here, and why a prevailing precedent here would guarantee the future rights for everyone in the future, along with the lower-court ruling.  The best way to get one of these organizations interested in your cause is to try and generate some media coverage of your case (call some local newspapers and TV stations), and then you can send news clippings or links to local news stories along with your cover letter.  Media citations like this go a long way toward making your case seem higher-profile, and greatly increase the odds that your request for legal assistance and/or an amicus brief is given serious consideration.

It should be noted that the actual formatting rules for petitioning SCOTUS are completely ridiculous.  Perhaps the worst is the fact that standard, 8 1/2 x 11 inch paper is not allowed. &nbs;"So what, it's got to be on legal size, or A4?" you ask.  If only!  SCOTUS requires your Petition for Certiorari be printed in the form of a saddle-stitched booklet, with each page 6 1/8 by 9 1/4 inches in size, containing a text field 4 1/8 by 7 1/8 inches in size.  "How the hell am I going to print that?" you ask.  Most likely, you're not.  You'll probably have to hire a Supreme Court Brief printing service (there are quite a few; shop around!)  Even worse, you'll need to submit no fewer than 40 (yes, forty!) of these weird little booklets to SCOTUS.  Even if you do every other aspect of the appeal yourself, just printing the petition booklets for a fairly simple SCOTUS brief can run upwards of $1000.  Printing rules such as these presumably made sense in the 18th century, when litigators wore powdered wigs, and the standard paper size may have resembled the cross-section of a shoebox.  In the 21st century they serve only to exclude people from exercising their appeal of last resort.  The Court should be ashamed of itself for using impediments such as exotic printing costs as a proxy to turn away appellants in place of a merit-based case screening process.

If the excessive printing costs (along with the Court's $300 docketing fee) do not dissuade you from a SCOTUS appeal, you can find more specifics in the Supreme Court rules themselves, which are quite readable and self-explanatory as far as judicial rules go.  Rule 14 discusses the sections which need to be in your petition, such as a Table of Contents and a Table of Cited Authorities if your petition exceeds 1,500 words/5 pages (almost guaranteed!)  Honestly, this document has enough useful authoring tips that its content-related rules are worth quick read for anyone drafting an appeal brief or petition for cert regardless of the legal forum.

If you do end up appealing your case to SCOTUS despite the financial and procedural obstacles, please let us know!

CLOSING COMMENTS

As the motions fly back and forth and begin to pile up, you may begin to question your own sanity as you try to keep the underlying procedural and substantive issues straight in your mind.  As your case file grows in width and mass, take pride!  Even if you are ultimately unsuccessful, your appeal is costing your oppressor thousands of dollars in time and effort, and you can be at peace knowing the money associated with your traffic ticket fine did not go gently into that sweet night.  Each motion you file is another arrow shot at the coinpurse of the government, and each reply the prosecution drafts is another stream of the government's fiduciary lifeblood coursing out into the dusty soil.  You'll also come away from the process with a newfound understanding of the law and the legal system.  And if you are ultimately successful, you'll have a great story to tell your grandchildren.

Email the Author

The author of this page can be reached at webmaster-at-freeexistence.org.  Replace "-at-" with "@" in the "To:" line.


Note that all downloadable documents have had the defendant names, dates, and other identifying facts changed to protect the contributors from any potential retaliation.

Reminder: All content on this site is automatically copyrighted by virtue of the Berne Convention for the Protection of Literary and Artistic Works.