{"id":159,"date":"2017-03-14T02:47:16","date_gmt":"2017-03-14T02:47:16","guid":{"rendered":"http:\/\/davidcorbettlaw.com\/blog1\/?page_id=159"},"modified":"2017-03-15T02:22:33","modified_gmt":"2017-03-15T02:22:33","slug":"case-scheduling-in-the-court-of-appeals","status":"publish","type":"page","link":"https:\/\/davidcorbettlaw.com\/blog1\/case-scheduling-in-the-court-of-appeals\/","title":{"rendered":"Case Scheduling in the Court of Appeals"},"content":{"rendered":"<p><em><span style=\"text-decoration: underline;\">What is the standard timeline after the Court of Appeals accepts review<\/span><\/em>?<\/p>\n<p>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.\u00a0 These deadlines are set by the RAPs, so one need not wait for the Court of Appeals letter to figure out what they are:<\/p>\n<ul>\n<li>Within 30 days of the acceptance of review, the party seeking review must file 1) a Designation of Clerk\u2019s Papers <em>with the trial court<\/em> (RAP 9.6(a)), and 2) a Statement of Arrangements <em>with the Court of Appeals<\/em> (RAP 9.2(a)).\u00a0 Recall that review is \u201caccepted\u201d, 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.\u00a0 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:\u00a0 <a href=\"http:\/\/www.courts.wa.gov\/appellate_trial_courts\/div1\/caseproc\/\">http:\/\/www.courts.wa.gov\/appellate_trial_courts\/div1\/caseproc\/<\/a>.\u00a0 The Designation of Clerk\u2019s 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.\u00a0 RAP 9.6.\u00a0 Fortunately, a party may supplement the designation of clerk\u2019s papers at any time prior to or with the filing of that party\u2019s 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).\u00a0 RAP 9.6.\u00a0 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.\u00a0 Possible alternatives to a verbatim transcript are described in RAP 9.2, 9.3, and 9.4.<\/li>\n<li>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.\u00a0 RAP 9.5.\u00a0 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.\u00a0\u00a0 RAP 9.5(b).\u00a0 However, if the delay is caused by non-payment by the requesting party, the requesting is subject to sanctions.\u00a0 RAP 9.2(d).\u00a0 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.\u00a0 RAP 9.5(b).<\/li>\n<li>Within 45 days of the filing in the trial court of the \u201creport of proceedings\u201d (typically, the verbatim transcript prepared by the court reporter), or within 45 days of filing the designation of clerk\u2019s papers, if no transcript has been requested,\u00a0 the appellant must file its opening brief.\u00a0 RAP 10.2(a).<\/li>\n<li>The brief of the respondent is due 30 days after the appellant\u2019s opening brief has been served. \u00a0\u00a0RAP 10.2(b).<\/li>\n<li>The appellant may file a reply brief within 30 days of the service of the brief of respondent.\u00a0 RAP 10.2(d).<\/li>\n<\/ul>\n<p>Once the briefing is completed, the timing of the completion of the case is largely out of the parties\u2019 hands.\u00a0 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).\u00a0 Once oral argument is completed, it can take as much as nine or ten months for the Court to issue its decision.<\/p>\n<p><em><span style=\"text-decoration: underline;\">What can disrupt the standard timeline<\/span><\/em>?<\/p>\n<p>A common source of delays in appellate case processing is requests for extension by one of the parties.\u00a0 All of the deadlines for perfecting the record and submitting briefs\u2014unlike the deadline for filing a Notice of Appeal or Notice for Discretionary Review\u2014are subject to the stricture of RAP 1.2(a) that the rules \u201cbe liberally interpreted to promote justice and facilitate the decision of cases on the merits.\u201d\u00a0 Compare RAP 18.8(b) (generally requiring strict enforcement of the deadline to file a Notice of Appeal or Notice for Discretionary Review).\u00a0 \u00a0\u00a0Accordingly, a party\u2019s first timely motion for extension of deadlines for completing the record or briefing will almost always be granted.\u00a0 Within limits, subsequent motions are also likely to be granted, provided that they have some reasonable basis.\u00a0\u00a0 It is surely wise practice, however, not to abuse this leniency by the Court of Appeals.\u00a0 Judicial good will is a precious commodity, and it is foolish to waste it unnecessarily.<\/p>\n<p>The Court of Appeals itself can also change the standard timeline.\u00a0\u00a0 Under RAP 18.12, the Court has the discretion to \u201cset a review proceeding for accelerated disposition.\u201d<a title=\"\" href=\"\/case_scheduling_in_the_court_of_appeals\/admin\/#_ftn1\">[1]<\/a> \u00a0\u00a0RAP 18.14, regarding \u201cmotions on the merits,\u201d also gives the Court a way of accelerating review (see next entry for more on \u201cmotions on the merits\u201d).\u00a0 In addition, the Court may decide a case without oral argument.\u00a0 RAP 11.4(j).\u00a0 \u00a0On the other hand, it can also request additional briefing, either before or after oral argument.\u00a0 RAP 10.1(h).<\/p>\n<p><em><span style=\"text-decoration: underline;\">Can a motion on the merits accelerate review<\/span><\/em>?<\/p>\n<p>Under RAP 18.14, a party may submit a \u201cmotion on the merits\u201d after the other party has submitted its initial brief.<a title=\"\" href=\"\/case_scheduling_in_the_court_of_appeals\/admin\/#_ftn2\">[2]<\/a>\u00a0 Such a motion can ask the Court to affirm or reverse all or part of the trial court decision on review.<a title=\"\" href=\"\/case_scheduling_in_the_court_of_appeals\/admin\/#_ftn3\">[3]<\/a>\u00a0 A motion on the merits <span style=\"text-decoration: underline;\">to affirm<\/span> \u201cwill be granted in whole or in part if the appeal or any part thereof is determined to be clearly without merit.\u201d\u00a0 RAP 18.14(e)(1).\u00a0 A motion on the merits <span style=\"text-decoration: underline;\">to reverse<\/span> \u201cwill be granted in whole or in part if the appeal or any part thereof is determined to be clearly with merit.\u201d\u00a0 RAP 18.14(e)(2).\u00a0 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 <em>typically<\/em> only a panel of judges will grant a motion on the merits to reverse.<a title=\"\" href=\"\/case_scheduling_in_the_court_of_appeals\/admin\/#_ftn4\">[4]<\/a><\/p>\n<p>In principle, a successful motion on the merits can accelerate the review process.\u00a0 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.\u00a0 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.\u00a0 However, \u201c[a] ruling or decision granting a motion on the merits by a single judge or commissioner is subject to review . . .\u201d (RAP 18.15(i)). That review process can undo any time savings from a successful motion.\u00a0\u00a0\u00a0 Also, making a motion on the merits will increase the amount of briefing due (at least if the motion fails), and thereby increase costs.\u00a0 It is good practice to reserve motions on the merits for unusual or egregious cases.<\/p>\n<p><em><span style=\"text-decoration: underline;\">What if the defendant in the trial court files for bankruptcy protection during the appeal<\/span><\/em>?<\/p>\n<p>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 <em>11 U.S.C. \u00a7 362(a) will at least arguably stop any appellate proceedings \u00a0in the case until the bankruptcy court grants relief from the stay.\u00a0 See, e.g., <\/em><em>Ingersoll Rand Financial Corp. v. Miller Mining Co.<\/em>, 817 F.2d 1424, 1426 (9th Cir 1987) (noting that \u201c[i]<em>n our view,<\/em><em>\u00a0<\/em><em>section 362<\/em><em>\u00a0<\/em><em>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\u201d) (citing to <\/em><a href=\"https:\/\/web2.westlaw.com\/find\/default.wl?tf=-1&amp;rs=WLW10.01&amp;referencepositiontype=S&amp;serialnum=1983131108&amp;fn=_top&amp;sv=Split&amp;referenceposition=62&amp;pbc=3C723BE7&amp;tc=-1&amp;ordoc=1987065540&amp;findtype=Y&amp;db=350&amp;vr=2.0&amp;rp=\/find\/default.wl&amp;mt=Westlaw\" target=\"_blank\"><em>Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983)<\/em><\/a><em>, cert. denied,<\/em><em>\u00a0<\/em><a href=\"https:\/\/web2.westlaw.com\/find\/default.wl?tf=-1&amp;rs=WLW10.01&amp;fn=_top&amp;sv=Split&amp;docname=106SCT3335&amp;tc=-1&amp;pbc=3C723BE7&amp;ordoc=1987065540&amp;findtype=Y&amp;db=708&amp;vr=2.0&amp;rp=\/find\/default.wl&amp;mt=Westlaw\" target=\"_blank\"><em>&#8212; U.S. &#8212;-, 106 S.Ct. 3335, 92 L.Ed.2d 740 (1986)<\/em><\/a>).\u00a0 If the Court of Appeals adopts this argument\u2014which seems likely\u2014it will stay any appeal in which the debtor was the defendant, regardless of whether the debtor is the appellant or respondent.<\/p>\n<p>&nbsp;<\/p>\n<p>Still have questions?<\/p>\n<p>Contact me at 253-414-5235 or at <a href=\"mailto:david@davidcorbettlaw.com\">david@davidcorbettlaw.com<\/a><\/p>\n<div><br clear=\"all\" \/><\/p>\n<hr align=\"left\" size=\"1\" width=\"33%\" \/>\n<p><a title=\"\" href=\"\/case_scheduling_in_the_court_of_appeals\/admin\/#_ftnref1\">[1]<\/a> Per RAP 18.13A, juvenile dependency orders and orders terminating parental rights \u201cshall be heard as expeditiously as possible.\u201d<\/p>\n<p><a title=\"\" href=\"\/case_scheduling_in_the_court_of_appeals\/admin\/#_ftnref2\">[2]<\/a> A court can also note a motion on the merits on its own initiative.\u00a0 RAP 18.14(a).<\/p>\n<p><a title=\"\" href=\"\/case_scheduling_in_the_court_of_appeals\/admin\/#_ftnref3\">[3]<\/a> Division III prohibits motions on the merits to reverse, as well as any motion on the merits that would leave some part of the appeal pending.\u00a0 See:\u00a0 <a href=\"http:\/\/www.courts.wa.gov\/appellate_trial_courts\/?fa=atc.genorders_orddisp&amp;ordnumber=012&amp;div=III\">http:\/\/www.courts.wa.gov\/appellate_trial_courts\/?fa=atc.genorders_orddisp&amp;ordnumber=012&amp;div=III<\/a><\/p>\n<p><a title=\"\" href=\"\/case_scheduling_in_the_court_of_appeals\/admin\/#_ftnref4\">[4]<\/a> The rules allocating authority to rule on motions on the merits are complex.\u00a0\u00a0 RAP 17.2(a) provides the starting point by listing five types of motion that must be determined by the judges. \u201cAll other motions may be determined initially by a commissioner or the clerk of the appellate court.\u201d RAP 17.2(a).\u00a0 Since motions on the merits are not included on RAP 17.2(a)\u2019s list, it appears to follow that they may be decided by a commissioner.\u00a0 However, RAP 18.4(d) suggests that there is a dichotomy between motions on the merits <em>to affirm<\/em> (which by the express terms of the rule may be \u201cdetermined\u201d by a commissioner) and motions on the merits <em>to reverse<\/em> (the rule says these may be <span style=\"text-decoration: underline;\">denied<\/span> by a commissioner, but is silent on whether they may be <span style=\"text-decoration: underline;\">granted<\/span> by a commissioner).\u00a0 On the other hand, RAP 18.14(3) appears to contemplate a commissioner \u201cmaking the[] determinations\u201d necessary to grant or deny a motion on the merits to reverse.\u00a0 A look at published and unpublished cases involving motions on the merits to reverse in Divisions 2 and 3 suggests, however, that standard practice for commissioners in those Divisions who believe that a motion to reverse should be granted is to refer the matter to a panel of judges, as per RAP 18.14(d).\u00a0 See, e.g., <em>Sales Creators, Inc. v. Little Loan Shoppe, LLC<\/em>, 150 Wn. App. 527, 208 P.3d 1133 (2009) (Div. 3); <em>In re Guardianship of Cobb,<\/em> 2011 WL 3332148 (Div. 2); and <em>Crow-Cyr v. Cyr<\/em>, 2008 WL 565707 (Div 2).\u00a0 Case law does not shed much light on the typical practice in Division 1, but a useful article by Commissioner Verellen, Ryan McBride, and James Feldman suggests that Commissioners in Division 1 will in an appropriate case grant a motion on the merits to reverse.\u00a0 See <a href=\"http:\/\/www.lanepowell.com\/wp-content\/uploads\/2009\/04\/mcbride_001.pdf\">http:\/\/www.lanepowell.com\/wp-content\/uploads\/2009\/04\/mcbride_001.pdf<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":[],"_links":{"self":[{"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/pages\/159"}],"collection":[{"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/comments?post=159"}],"version-history":[{"count":2,"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/pages\/159\/revisions"}],"predecessor-version":[{"id":178,"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/pages\/159\/revisions\/178"}],"wp:attachment":[{"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/media?parent=159"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}