Errors in appeal
Lawyers typically make three basic mistakes in appellate court.
They do not check the unconditional grounds for canceling a decision
This is a strong argument for overturning the decision, but it is often overlooked. Lawyers are too keen on justifying their position and describing the circumstances, but forget to check whether there are unconditional procedural violations in the case.
If the appellant finds at least one such violation, the court will cancel the decision and reconsider the case according to the rules of the first instance, that is, it will reconsider the dispute on the merits. During such a review, it will be possible to submit petitions and statements, present evidence, if for some reason they did not do this in the first instance.
Most often in complaints, appellants refer to two violations - the court considered the case without a person participating in the case, who was not notified of the time and place of the hearing, or the court made a decision on the rights and obligations of persons who were not involved in the case.
If the judge in the case was illegally replaced or territorial jurisdiction was violated, you can refer to the consideration of the case in an illegal composition of the court.
Check if there is a court record in the case - higher courts often overturn decisions due to its absence. If there is no audio recording of the court hearing in the case, the courts can also overturn the decision on the same grounds.
The appeal will overturn the decision if there is no audio recording, but it contained information that served as the basis for the adoption of a judicial act. Therefore, indicate in your complaint what important information was on the audio recording. For example, interrogation of witnesses, experts, examination of evidence.
Lawyers are bad at building a defense
The lawyer cites in the appeal an endless list of court errors from serious to insignificant.
For example, when he points out that the judge incorrectly applied the rules and was not wearing a robe, the second argument clearly negates the seriousness of the first. The appellants usually formulate the violations themselves in general terms - without reference to specific evidence and case materials. Judges rarely take such complaints positively.
Recommendation - write no more than four to five clearly stated reasons for cancellation. In each argument, it is advisable to describe three points: the lower court's error, the incorrect conclusion it reached because of that error, and the conclusion the court should have reached.
Lawyers are passive during appeals
When the court has already considered the case on its merits, lawyers think that their task in the appeal is only to present arguments for and against the court’s decision. This is not entirely true. An appeal is the last opportunity to close evidentiary gaps in the positions of the parties in the case. Take advantage of this.
Try to present evidence essential to the case in the appeal, file motions. The appellate authority may accept additional evidence from a party and consider requests for new evidence, but only in two cases. The first case is if the party justifies that it could not present them to the first instance for valid reasons. The second is if the court of first instance rejected them. That is, in the appeal it is necessary to once again state all the petitions and evidence that were rejected by the first instance.
If you did not present evidence at the first instance, but it is essential to the case, still present it on appeal. If you cannot give good reasons or they are clearly “extracted,” the likelihood that the court will accept the evidence or satisfy the petition still remains: the court would rather accept new evidence than not accept it at the risk of canceling the judicial act.
For example, a company filed a claim against the company for unjust enrichment. Since the defendant did not provide evidence that he withheld the transferred money justifiably, the court granted the claim. To the appellate court, the defendant presented contracts and service acceptance certificates, which confirmed the existence of obligations between the plaintiff and the defendant and the basis for payments. The appeal added documents to the case and dismissed the claim. The higher courts agreed with the appellate court.
According to the Code of Criminal Procedure of the Russian Federation
To appeal the verdict of the court of first instance in criminal proceedings, 10 calendar days are allotted.
There are a number of nuances when calculating deadlines. Thus, convicts who are at large have the right to file an appeal within 10 days from the date of the decision, while those in custody - within the same period, but from the moment they receive a copy of the verdict.
The filing deadlines are set out in Article 389.4 of the Code of Criminal Procedure, which details the provisions of the law regarding the time frame in appeal proceedings.
Errors in cassation
Lawyers make six common mistakes. The first three were discussed in the section on appeal. Three more errors are typical only for cassation.
The arguments of the complaint go beyond the scope of cassation consideration
In 99 percent of cases when cassation upholds decisions of lower courts, it indicates that the arguments of the complaint are aimed at reassessing the factual circumstances of the case and evidence. And this is not within the scope of consideration of the case in cassation. Cassation only checks whether the courts correctly applied the rules of substantive and procedural law.
The reason for this practice is that lawyers often copy the text of the appeal into the cassation complaint. For example, the complaint writes that “the conclusions of the courts do not correspond to the factual circumstances and the evidence presented in the case.”
If you want to present new evidence or perform procedural actions that are possible only in the first instance, look for unconditional grounds for reversing the decision.
In your cassation appeal, refer specifically to errors in the application of the rules - these are your main arguments. All arguments that are related to non-research or incorrect assessment of evidence are given only to confirm the court’s errors.
The arguments of the complaint do not correspond to the pleading purpose
The goal of the cassator is to achieve the reversal of judicial acts with which he does not agree. To do this, he can ask the cassation court, for example, to adopt a new judicial act in the case, to send the case for a new trial, or to leave in force one of the decisions or resolutions previously adopted in the case. Sometimes cassation officers ask to adopt a new act in the case - this is the most advantageous for the party, regardless of the circumstances of the case and the arguments that it brings.
The cassation court will not be able to adopt a new act, since to do this it will have to examine and evaluate the evidence, and the cassation court does not have the right to do this. Such a discrepancy between the request and the arguments reduces the credibility of the complaint and often raises questions and criticism in the court of cassation.
Study the case materials and select possible arguments for cassation. After this, decide how to formulate the pleading part of the cassation appeal.
Additional documents submitted too late
Lawyers often file position papers too late and draft them incorrectly. Courts usually accept documents directly at the hearing, but not cassation documents. If you submit a response to the complaint, additions, or written explanations directly to the hearing, the cassation office may reject them. For example, the court indicated that written explanations were received on the eve of the court hearing and refused to include them in the case materials.
Consider the peculiarities of the court. For example, the Arbitration Court of the Moscow District may not accept written explanations, since it considers them new evidence that the cassation cannot accept. Therefore, format additional explanations as the text of a speech - the courts usually accept it.
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According to the Code of Civil Procedure of the Russian Federation
According to the rules of civil procedure, a complaint by way of appeal is filed through the judicial authority whose decision is being appealed. If the applicant sends the letter directly to a higher authority, which will consider the appeal as an appeal, then it will be forwarded to the appropriate court and only after that, in accordance with the requirements established by Article 325 of the Code of Civil Procedure, will it be sent to the supervisory authority.
The letter can be sent by registered or regular mail, delivered in person to the court office, or otherwise delivered to the trial court. The main thing is to meet the allotted deadlines, i.e. send the letter before 00.00 hours of the last day allotted for its submission.
How to file an appeal?
This question, despite its simplicity, is not at all simple... and a subtle approach is needed here...
You will ask why?
Let me explain... In order to competently appeal a court decision, you must obtain the full text of the court decision, as well as familiarize yourself with all the materials of the case. I have repeatedly encountered situations where judges took weeks, and sometimes months, to prepare a court decision...
So how can you ensure that you don’t miss the deadline for appealing and still have more than a month to prepare your Appeal?
The recipe is as follows - serve the so-called. “short appeal”, what is it?
A short appeal is a complaint against a court decision prepared intentionally with errors and not sufficiently motivated, without paid state duty...
Why is this being done?
The court, having received such a short appeal, is obliged to accept it - but!... Having considered this complaint, the court issues a ruling to leave it without movement and invites you to eliminate the identified shortcomings within a certain period of time - as a rule, this period extends beyond a month from the date of the decision... This is the time for you to prepare a full complaint (read the case, get the full court decision, find a lawyer...) and the deadline for delaying the entry into force of the court decision.
Where to submit?
In response to the decisions of the magistrate - to the district (in Moscow) or city (in the region) court, your complaint will be considered solely by a federal judge.
Based on the decisions of the district (in the region - city) court - in Moscow this is the Moscow City Court, in the Moscow region - the Moscow Regional Court, your complaint will be considered by a panel of three federal judges.
How to file an Appeal?
The rules for drawing up Appeals are set out in detail in the Civil Procedural Code of the Russian Federation, these rules are mandatory for their compliance and in case of violation, the complaint will not be accepted, and the Decision will enter into legal force after a month from the date of its adoption.
The chances that your complaint will be upheld in a higher court are only possible if your appeal:
- competently compiled - with reference to laws, judicial practice and case materials,
- the state fee has been paid, all necessary documents are attached,
- clearly indicates violations committed by the court with reference to articles of law,
- contains legal requirements to change, cancel, or make a new decision in the case.
If you want to make such a complaint yourself, I recommend that you:
- study your entire file thoroughly - every page,
- find and analyze judicial practice in similar cases and with reference to laws, indicating contradictions between the case materials/decision and judicial practice, give a detailed analysis of the decision,
- draw up an appeal as correctly, clearly and understandably as possible. The higher court most likely will not read your 15 sheets stating that the judge did not listen to you throughout the trial... The higher court is only interested in the facts, case materials and practice.
You must understand that if your complaint is not satisfied, your chances of challenging the court decision are reduced to almost zero, and after consideration of your complaint and refusal to satisfy it, the decision enters into legal force on the same day.
Court rulings can be appealed within 15 days by filing a private complaint... also drawn up according to the rules established in the Code of Civil Procedure of the Russian Federation (Civil Procedure Code), this complaint must be motivated with reference to laws and practice.
Therefore... if you want to make a motivated, justified complaint against the court decision/rulings, with reference to laws, practice and case materials, it is better to contact those who do this every day... The risk of your mistake is too great and you most likely already have a second chance will not be.
If you need to delay the entry into force of a court decision, if you need to draw up an appeal/private complaint and represent your interests in a higher court, please contact, call/write, I will be happy to help you.
But my advice is not to delay this issue until the last minute, because you can miss the deadline for appealing...
Payment of state duty
The legal requirement for payment of state duty is enshrined in Chapter 25.3 of the Tax Code of the Russian Federation.
The amount of the state fee depends on the status of the applicant and the type of appeal. Individuals pay 150 rubles, legal entities - 3000 rubles.
If the appeal is sent to the arbitration court, the state fee will be 3,000 rubles, regardless of the status of the applicant.
You should not ignore paying the state fee; without a receipt, the complaint will remain either without consideration or without progress.
You can get legal assistance regarding an appeal against a court decision on our website.
