I often have clients ask me how long their appeal will take. This post goes through the stages of the appeal and give you time frames, so you can know what to expect. My estimates are based on averages from the many appeals we have handled from start to finish and on statistical information provided by the appellate courts.
Appeals to the Mississippi Supreme Court and Court of Appeals can be broken down into 3 stages. Stage 1 is the preliminary stage where notice of the appeal is given and the record is compiled. In Stage 1, the appealing party starts the appeal by filing a Notice of Appeal. This document gives notice to the opposing party, the trial court clerk, court reporter, and trial judge that an appeal has been filed. The Notice of Appeal must be filed within 30 days of the trial court’s final judgment. If the notice is not filed on time, then the appellate court will not have jurisdiction to consider the appeal. After the party appealing files the Notice of Appeal, the trial-court clerk composes the documents and exhibits that have been filed, and the court reporter transcribes the hearings and trial. The documents are then combined into a single record. The trial-court clerk then sends the record to the Supreme Court, which will then issue a briefing schedule.
Stage 2 is the briefing period. Each side’s brief is where they argue their case to the Supreme Court. The briefs are the single most important thing that the appeals court will consider in making their decision. The party appealing gets to file the first brief, the party defending the appeal then gets to file a response, and then the party appealing gets to file a rebuttal. After the last brief is filed, the court is allowed to grant an oral argument, but rarely does. (From my experience, the grant or denial of a request for oral argument is no indication of how the court plans to rule.) If oral argument is granted, the attorneys are each given 30 minutes apiece to argue their case orally. Much of the argument usually consists of answering the judges’ questions. The litigants do not participate in the oral argument, only attorneys. If oral argument is granted, it generally does not impact the overall time for the court to rule on the appeal.
Stage 3 is the court’s deliberation period, which begins when the last brief is filed. The Supreme Court has 9 judges (technically called “justices”), and the Court of Appeals has 10 judges. All of the judges (unless they recuse from the case) review and vote on every case. A majority or plurality must be obtained for the court to issue a decision. Judges may vote to concur or to dissent from the majority opinion. The appellate court’s ruling comes in the form of a written opinion, which is authored by one of the judges on the appellate court. Unlike many states, Mississippi appellate courts provide written opinions on essentially every case that is appealed from a final judgment in the trial court.
So how long does it take for each stage to run its course?
Stage 1 generally lasts from 3 to 6 months. Most of Stage 1 is waiting for the court reporter to transcribe the trial and any pretrial hearings. Often, the court reporter will be given at least several months to compose the official transcript.
Stage 2 usually lasts about 6 months. The briefing schedule gives the appealing party (called the “appellant”) 40 days to file their appellant’s brief, the defending party (called the “appellee”) 30 days to respond with their appellee’s brief, and then the appealing party 14 days to file an appellant’s reply brief. However, the appellate courts are flexible on these deadlines and will automatically grant each side up to 60 days of extensions, if requested. It is the norm for both sides to request one or more extensions of time to file their brief. Thus, the briefing period usually lasts about 6 months or slightly longer.
Stage 3 usually lasts from 6 to 9 months. The court has a statutory deadline of 270 days to issue its decision after the last brief is filed. Currently, the average time from the filing of the last brief through a decision is around 200 days (slightly over 6 months), but often the court will take most of the 270 days (9 months) allotted to decide the appeal.
So, on average, the appeal process—from the filing of a Notice of Appeal to a decision by the appellate court—usually takes about a year and a half total. But wait…while often that is the end, the party who loses the appeal does sometimes continue the appellate process with additional filings. If the Court of Appeals was assigned the initial appeal (rather than the Supreme Court), the losing party may file a Petition for Writ of Certiorari with the Mississippi Supreme Court. Unlike with the original appeal, where the appealing party has a right to have the appellate court consider the case and issue an opinion, on certiorari, the Supreme Court votes on whether to take the case or not. For the Supreme Court to hear an appeal from the Court of Appeals, 4 justices on the Supreme Court must vote to hear the case. If certiorari is denied, then the Court of Appeals decision stands.
Also, before filing for certiorari, the party losing the appeal must first file a Motion for Rehearing in the Court of Appeals. The rehearing motion essentially asks the Court of Appeals to reconsider its decision. Such motions are sometimes granted, but rarely. Usually the main purpose of filing a motion for rehearing is to allow another level of appeal to the Supreme Court. (Also, if the Supreme Court is the initial court to handle the appeal, the losing party may file a motion for rehearing for the Supreme Court to reconsider its decision. But those motions are rarely granted.)
Notably, petitions for certiorari are often worthwhile, as the Supreme Court typically grants over 20 percent of the petitions for certiorari that are filed following Court of Appeals decisions.
After the rehearing and certiorari process has concluded, the appellate process is over in Mississippi, which normally is the end of the road. However, decisions of the Mississippi Supreme Court may be appealed to the United States Supreme Court via a petition for certiorari. Like the Mississippi Supreme Court, cert petitions in the U.S. Supreme Court must have 4 justices vote to hear the case for the appeal to proceed.
If rehearing and certiorari proceedings are utilized, the appeal process will be extended beyond the approximately year and a half that the initial appeal takes. If rehearing and certiorari are requested but denied (in the Mississippi courts), then usually the process adds about another 6 months before the appeal becomes final. If certiorari is granted, the process can take a good bit longer. So, certiorari proceedings can extend the total appeal time beyond the 2-year mark.
Bottom line, people who are considering an appeal in Mississippi should understand that it is a lengthy process. Usually, one can expect the appeal to take a year and a half or longer. Though this is a long time, it is well worth the wait to those who have a good appellate case.