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So how long does an appeal actually take?

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by: Ryan • May 5, 2013 • no comments

To my surprise, I've heard appellate attorneys give very different answers to the title question than I'm about to give. In some cases, I think it's because their answer is the same answer they gave ten years ago, and so it doesn't take into account how the appellate process has slowed down over the past few years.

I should add that I'm not faulting anyone -- lawyers, judges, the legislature -- in this post. It is what it is. When new appellate judges are added this fall, that might help speed things up, but not, I suspect, right away. Also, my experience is strictly limited to criminal appeals.

Anyway, take any predictions with a grain of salt, but here's an example I give to people. I was the trial attorney on a case that was supposed to begin on a particular Monday, but my wife went into labor Sunday night and the case was set over while my daughter was born. I tried the case a month later, beating 6 Measure 11 counts but losing on 6 others. For reasons not worth going into here, my client was sentenced almost immediately.

I did not handle the appeal. But nothing in particular slowed the appeal down. And we are still waiting for an appellate opinion. Meanwhile, my daughter had her 3rd birthday a few months ago.

And this isn't unusual. First, some trial courts are very fast at filing the judgment (e.g., Clackamas County) but some are very slow. Since the notice of appeal won't be filed before the judgment, that alone can add a few months. Then the transcript, let's give the transcriptionist a conservative 3 months to get the transcript done after the notice of appeal is filed. The appellate attorney will -- in most cases -- take 8 months to file the opening brief, though some privately retained appellate attorneys -- given smaller case loads -- can be faster by a few months. The state will usually take its full 8 months to respond. Assuming no reply brief, oral argument is probably 7 months after that. So if we figure the judgment was entered immediately, and a notice of appeal filed 30 days later, it's taken 27 months to get to oral argument.

An AWOP will occur -- most of the time -- 3 to 5 weeks later. But the length of time it takes the COA to write an opinion has gone up significantly, so that I'm no longer surprised if it takes a year or more. The case I mentioned above has been under advisement for just over a year.

Sure, some opinions are issued quicker, but if the issue is complicated or difficult, I'd be surprised at less than six months. Even six months -- assuming all of the conservative estimates above -- puts you just 3 months shy of 3 years.

And it's still not over, if either side petitions for review.