Case Scheduling in the Court of Appeals

What is the standard timeline after the Court of Appeals accepts review?

Once it accepts review, the Court of Appeals typically sends each of the parties a letter spelling out deadlines for perfecting the record and submitting briefs.  These deadlines are set by the RAPs, so one need not wait for the Court of Appeals letter to figure out what they are:

• Within 30 days of the acceptance of review, the party seeking review must file 1) a Designation of Clerk’s Papers with the trial court (RAP 9.6(a)), and 2) a Statement of Arrangements with the Court of Appeals (RAP 9.2(a)).  Recall that review is “accepted”, and triggers the application of these deadlines, when either a proper Notice of Appeals is filed, or when the Court to Appeals grants a Motion for Discretionary Review.  The required contents of the Designation and Statement of Arrangements are provided by Rap 9.2 and 9.6, and suggested forms are available at:  http://www.courts.wa.gov/appellate_trial_courts/div1/caseproc/.  The Designation of Clerk’s papers serves to inform the trial court clerk which paper documents and physical exhibits should be sent to the Court of Appeals to form part of the record on review.  RAP 9.6.  Fortunately, a party may supplement the designation of clerk’s papers at any time prior to or with the filing of that party’s last brief (though care must be taken to also file a supplemental designation with the trial court, so that the documents will be properly transmitted to the Court of Appeals).  RAP 9.6.  The Statement of Arrangements describes the agreement that has been reached with the trial court reporter to prepare a verbatim transcript of the relevant trial court proceedings.  Possible alternatives to a verbatim transcript are described in RAP 9.2, 9.3, and 9.4.
• Within 60 days after the filing of the Statement of Arrangements, the trial court reporter must file a transcript with the clerk of the trial court.  RAP 9.5.  Timely compliance with this requirement is typically not in the control of the party requesting the transcript, and the RAPs provide for sanctions on the court reporter if the deadline is not met.   RAP 9.5(b).  However, if the delay is caused by non-payment by the requesting party, the requesting is subject to sanctions.  RAP 9.2(d).  In any event, the party requesting the transcript bears the burden of filing a motion for extension of time if the court reporter is unable to comply with the 60 day deadline.  RAP 9.5(b).
• Within 45 days of the filing in the trial court of the “report of proceedings” (typically, the verbatim transcript prepared by the court reporter), or within 45 days of filing the designation of clerk’s papers, if no transcript has been requested,  the appellant must file its opening brief.  RAP 10.2(a).
• The brief of the respondent is due 30 days after the appellant’s opening brief has been served.   RAP 10.2(b).
• The appellant may file a reply brief within 30 days of the service of the brief of respondent.  RAP 10.2(d).

Once the briefing is completed, the timing of the completion of the case is largely out of the parties’ hands.  The Court of Appeals will typically schedule oral argument for some four-to-six-months after the briefs are completed (though the Court occasionally decides cases without granting oral argument).  Once oral argument is completed, it can take as much as nine or ten months for the Court to issue its decision.

What can disrupt the standard timeline?

A common source of delays in appellate case processing is requests for extension by one of the parties.  All of the deadlines for perfecting the record and submitting briefs—unlike the deadline for filing a Notice of Appeal or Notice for Discretionary Review—are subject to the stricture of RAP 1.2(a) that the rules “be liberally interpreted to promote justice and facilitate the decision of cases on the merits.”  Compare RAP 18.8(b) (generally requiring strict enforcement of the deadline to file a Notice of Appeal or Notice for Discretionary Review).    Accordingly, a party’s first timely motion for extension of deadlines for completing the record or briefing will almost always be granted.  Within limits, subsequent motions are also likely to be granted, provided that they have some reasonable basis.   It is surely wise practice, however, not to abuse this leniency by the Court of Appeals.  Judicial good will is a precious commodity, and it is foolish to waste it unnecessarily.

The Court of Appeals itself can also change the standard timeline.   Under RAP 18.12, the Court has the discretion to “set a review proceeding for accelerated disposition.”[1]   RAP 18.14, regarding “motions on the merits,” also gives the Court a way of accelerating review (see next entry for more on “motions on the merits”).  In addition, the Court may decide a case without oral argument.  RAP 11.4(j).   On the other hand, it can also request additional briefing, either before or after oral argument.  RAP 10.1(h).

Can a motion on the merits accelerate review?

Under RAP 18.14, a party may submit a “motion on the merits” after the other party has submitted its initial brief.[2]  Such a motion can ask the Court to affirm or reverse all or part of the trial court decision on review.[3]  A motion on the merits to affirm “will be granted in whole or in part if the appeal or any part thereof is determined to be clearly without merit.”  RAP 18.14(e)(1).  A motion on the merits to reverse “will be granted in whole or in part if the appeal or any part thereof is determined to be clearly with merit.”  RAP 18.14(e)(2).  A commissioner may decide a motion on the merits to affirm, and may deny a motion on the merits to reverse (see RAP 18.14(d)), but typically only a panel of judges will grant a motion on the merits to reverse.[4]

In principle, a successful motion on the merits can accelerate the review process.  Such a motion can focus attention on a single critical legal issue, and perhaps obviate the need for the Court to undertake a detailed review of the factual record.  Moreover, it should take less time for a single judge or commissioner to decide a motion than for a three person panel to issue an opinion.  However, “[a] ruling or decision granting a motion on the merits by a single judge or commissioner is subject to review . . .” (RAP 18.15(i)). That review process can undo any time savings from a successful motion.    Also, making a motion on the merits will increase the amount of briefing due (at least if the motion fails), and thereby increase costs.  It is good practice to reserve motions on the merits for unusual or egregious cases.

What if the defendant in the trial court files for bankruptcy protection during the appeal?

If a defendant or cross claim defendant in the trial court action files for bankruptcy protection during an appeal, the automatic bankruptcy stay offered by 11 U.S.C. § 362(a) will at least arguably stop any appellate proceedings  in the case until the bankruptcy court grants relief from the stay.  See, e.g., Ingersoll Rand Financial Corp. v. Miller Mining Co., 817 F.2d 1424, 1426 (9th Cir 1987) (noting that “[i]n our view, section 362 should be read to stay all appeals in proceedings that were originally brought against the debtor, regardless of whether the debtor is the appellant or appellee. Thus, whether a case is subject to the automatic stay must be determined at its inception. That determination should not change depending on the particular stage of the litigation at which the filing of the petition in bankruptcy occurs”) (citing to Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983), cert. denied, — U.S. —-, 106 S.Ct. 3335, 92 L.Ed.2d 740 (1986)).  If the Court of Appeals adopts this argument—which seems likely—it will stay any appeal in which the debtor was the defendant, regardless of whether the debtor is the appellant or respondent.

Still have questions?

Contact me at 253-414-5235 or at david@davidcorbettlaw.com