Appeal burdens

On Nov 30, 6:59 am, lolajo...@webtv.net wrote:
> I appealed a speeding ticket conviction and filed everything within the
> prescribed deadlines including my opening brief. The Respondent (the
> county DA) had twenty days to file their answer brief. 9 days after that
> deadline they filed a motion for an extension of time to file. I filed
> an objection to this since it was filed past the deadline. The Judge
> agreed and refused to honor the time extension and will not accept their
> answer brief. What does this do to my appeal? Does this mean the court
> now rules in my favor by default? I know that if I (the appellant)
> failed to file my opening brief on time, my appeal would be dismissed.
> Is the same standard held to the respondent?

Unfortunately for you, probably not.   You will still have to appear in court on the appointed day to argue your appeal, and to prove why you think the conviction was wrong.   You, as the appellant, have the burden of proof on appeal; that's why your appeal would be dismissed if you failed to take the required initial steps.  The party who does _not_ have the burden of proof does not strictly speaking have to do anything at all, and can still win; the appellee (in your case, the state) wins by default if the appellant (you, the party who is requesting a change in the status quo), who is supposed to prove something to justify why the appeal court should overturn the judgment, fails to do so.

The main rule I have learned about how to win on appeal is, "be the appellee."   (That's a joke.)   Meaning, even if the appellee (the one who won the case below and wants it to stay that way) doesn't show up, or doesn't provide any argument, or doesn't file a brief, in all likelihood the appellee will still win.   Only a tiny percentage of the cases that get appealed actually get overturned on appeal, so the statistics bear out the joke.   (The serious purpose of the joke, for a practicing lawyer, is to urge him to put everything he has and all his effort into getting the trial judge to rule in his favor, since there is little hope of getting any different result when he appeals a bad result to a different judge).

The judge's ruling in your case means that the DA can't file any written brief, but it doesn't sound like that prevents him from coming to the appeal hearing and presenting oral argument to contradict yours.   Even if it does, that still doesn't mean you win by default.   You will still have to convince the appeals judge that he should overturn the result  reached by the trial judge.  Depending on how well you do that, and the judge's predelictions, he may or may not do that, even if there is no one arguing against you on the other side of the issue.  Good luck, though.

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Mike Jacobs
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