Do File Notices of Appeal, When They're the Right Thing to File

Brandon Bullard
March 10, 2022

An article currently circulating among the young lawyers of my state says that lawyers should not be filing notices of appeal. It suggests instead that they should prefer applications for discretionary appeal. The proffered theory is that a lawyer need not suss out whether an application or a notice was the correct procedure because the appellate court will always grant an application where a notice was appropriate, but not vice versa. On the same premise, the article's author suggested sending matters of uncertain jurisdiction to the Supreme Court of Georgia because it would transfer the case to the Court of Appeals if the lawyer had it wrong, and the Supreme Court's judgment on jurisdiction would be final.

I have long since aged out of the "Young Lawyer" category, as the graying hairs at my temples and in my beard will attest. But when someone publishes advice about my niche practice area, I notice—particularly when the advice is poor.

Let me explain. In Georgia, there are three basic methods for appealing a trial court's judgment: (1) a direct appeal (under OCGA § 5-6-34(a)); (2) an interlocutory appeal (under OCGA § 5-6-34(b)); and (3) a discretionary appeal (under OCGA § 5-6-35)). Yes, there are other processes that apply in special cases (e.g., appeals by the prosecution in a criminal matter under Chapter 7 of Title 5 and appeals from the denial of a writ of habeas corpus under Chapter 14 of Title 9). But those three—direct, interlocutory, and discretionary—cover the bulk of appeals in Georgia courts.

The process for each is different: A direct appeal requires a simple notice to the trial court within 30 days of the appealable judgment's having been entered. An interlocutory appeal requires a certificate from the trial court, an application to the appellate court, and a notice of appeal, all on a strict timeline. And a discretionary appeal requires an application to the appellate court within 30 days of the appealable judgment and a notice of appeal to the trial court within ten days of the application's having been granted.

The procedure to apply depends on the judgment being appealed. The direct-appeal procedure applies to final judgments and a list of judgments in certain matters that a lawyer can find in the statute. The interlocutory-appeal procedure applies to non-final judgments (when the case is still pending in the trial court). And the discretionary-appeal procedure applies to a specific set of judgments that would generally be subject to the direct-appeal procedure, except that the legislature has singled them out for special treatment.

To the article's credit, the general rule in Georgia's appellate courts is that if a lawyer follows a more rigorous road to review than the judgment required (e.g., interlocutory or discretionary instead of direct), the appeal will go forward. But if the lawyer takes an easier road than was required (e.g., direct instead of interlocutory or discretionary), the appeal will be dismissed. So always following the strictest procedure may seem pragmatic, but there's a fine line between pragmatic and lazy.

Georgia appellate procedure is by-and-large transparent. As with most procedural questions, a lawyer should be able to sort out which procedure to follow by reading the statutes and and applicable cases. Look them up. The same thing is true with jurisdiction. The appellate courts' jurisdiction is a matter of constitutional and statutory law. Look those up too. Some lazy lawyer before you has likely screwed up the procedural or jurisdictional issue in a way that generated an instructional opinion. That's what your client is paying you to know how to do. And if you're billing hourly, you'll have saved your client at least a little money (and yourself a little drafting) by determining the correct procedure to begin with.

More important, perhaps, is that you will be saving work for and building credibility with the appellate courts. When an appeal comes into either of Georgia's appellate courts, a cadre of central-staff lawyers reviews it for jurisdictional and procedural issues. Our appellate courts are particularly busy. They hold that fact out as a badge of honor. You will score no points with the Courts' central staffs by making them read unnecessary applications.

None of this is to say that Georgia appellate procedure is without its murky areas. But they are few. When your research exposes a real question, then—and only then—should you rely on duplicative procedures. And when you do, announce in your filings that's what you're doing. A court appreciates the opportunity to resolve well-framed, well-researched jurisdictional issues. And no one will fault you for raising it.

The alternative to your doing the basic stuff of lawyering is to engage an appellate lawyer. Appellate practice is a specialty. Dabbling can be dangerous. And Georgia's specialized appellate bar is robust. There are plenty of us who will gladly help you and your client work through these and other appellate issues well before they become problems. Odds are we've already worked through most of these questions at least once or twice.

At The Bullard Law Firm, we believe that you require another chance to rebuild your life and reputation. We work our best to fight for our clients’ interests by representing them in sex offender registry removal petitions. If you would like to schedule an appointment with one of our Georgia appeals attorneys, contact us online or call us at (404) 954-0598 to speak to our legal team.