How an Appeal Works in Michigan, Step by Step

Most Michigan appeals start in the Court of Appeals. From a final judgment you generally appeal of right by filing a claim of appeal, due 21 days after entry in a civil case and 42 days after entry in a criminal case. MCR 7.204(A). Other orders, and plea convictions, need the court’s permission, called leave to appeal.

Appeal of right or leave to appeal

An appeal of right comes from a final judgment or final order of the circuit court or the Court of Claims. MCR 7.203(A)(1). In a civil case, the final order is the first one that disposes of all the claims and decides the rights and liabilities of all the parties. MCR 7.202(6)(a)(i). In a criminal case, it includes the original sentence. MCR 7.202(6)(b)(ii). Two things are carved out. A circuit court decision made on appeal from another court is not appealable of right, and neither is a conviction based on a guilty or nolo contendere plea. MCR 7.203(A)(1)(a), (b).

Everything else goes by leave, meaning the Court of Appeals decides whether to hear it. That covers interlocutory orders, a circuit court’s final judgment on appeal from another court, and certain agency orders. MCR 7.203(B)(1) to (3). Leave is also the fallback when an appeal of right was available but the claim of appeal was not filed on time. MCR 7.203(B)(5).

The deadlines

A civil claim of appeal is due within 21 days of entry of the judgment or order, unless another time is provided by law or court rule. MCR 7.204(A)(1). Entry means the date the order is signed or the date it is entered in the register of actions. MCR 7.204(A). If a motion for new trial, rehearing or reconsideration is filed within that 21 days, the period runs from the order deciding the motion. MCR 7.204(A)(1)(d). For the trial-court side of a civil dispute, see my civil litigation page.

A criminal claim of appeal is due within 42 days after entry of the judgment or order appealed from, or within 42 days after an order denying a timely motion for new trial, directed verdict or to correct an invalid sentence. MCR 7.204(A)(2). After a trial conviction, the court must advise the defendant that a request for appointed counsel has to be filed within 42 days after entry of the judgment of sentence to appeal by right. MCR 6.425(F)(1)(c). Most criminal appeals begin with the trial-court case, which I handle in the criminal cases I defend in Kent County.

The rule states that the time limit for an appeal of right is jurisdictional. MCR 7.204(A). So I calendar it from the entry date on the order. A narrow rule covers orders that were served late. MCR 7.204(A)(3).

An application for leave is generally due within 21 days of the order. MCR 7.205(A)(1). A criminal defendant has the later of 6 months from entry or 42 days after listed events, such as the filing of ordered transcripts or an order deciding a motion to withdraw a plea. MCR 7.205(A)(2). A delayed application under the general 21-day rule may be filed within 6 months of entry. MCR 7.205(A)(4)(a).

The record and the briefs

The Court of Appeals hears appeals on the original record. MCR 7.210(A). The appellant is responsible for securing the transcript, and the court reporter must file a certificate within 7 days after it is ordered. MCR 7.210(B)(1)(a), (3)(a). In a civil appeal, a docketing statement is due 28 days after the claim of appeal. MCR 7.204(H).

In most cases the appellant’s brief is due 56 days after the latest of the claim of appeal, the order granting leave, or the filing of the transcript. The period is 28 days in child custody cases, certain guardianship and mental health cases, and interlocutory criminal appeals. MCR 7.212(A)(1)(a). The appellee has 35 days after service of the appellant’s brief, or 21 days in those faster categories. MCR 7.212(A)(2)(a). A reply is due 21 days after the appellee’s brief. MCR 7.212(G). Principal briefs are capped at 16,000 words and replies at 3,200. MCR 7.212(B)(1), (G). A party who misses a brief deadline forfeits oral argument. MCR 7.212(A)(4).

What the court asks about each issue

Each argument must state its standard of review and show where the issue was preserved in the trial court. MCR 7.212(C)(7). I look at those two things first.

• Discretionary rulings: reviewed for abuse of discretion. There can be more than one reasonable and principled outcome, and the court defers when the trial judge chose one of them. Maldonado v Ford Motor Co, 476 Mich 372, 388 (2006).
• Findings of fact: not set aside unless clearly erroneous. MCR 2.613(C).
• Questions of law: reviewed without deference. In sentencing-guidelines cases, factual findings get clear-error review and the application of the facts to the statute gets de novo review. People v Hardy, 494 Mich 430, 438 (2013).
• Unpreserved criminal claims: reviewed only for plain error that affected substantial rights. People v Carines, 460 Mich 750, 763 (1999).

After the briefs

Once both briefs are in, or the appellee’s time has run, the clerk notifies the parties that the case will be submitted as a calendar case at the next available session. MCR 7.213(B). Many civil appeals can also be referred to mediation. MCR 7.213(A). I do not quote an average time to a decision, because it varies and I would be guessing.

Opinions are published or unpublished. A published opinion is binding precedent, and an unpublished one is not. MCR 7.215(C).

Asking the Michigan Supreme Court

After the Court of Appeals rules, a party can apply for leave to appeal to the Supreme Court. The grounds include that the decision is clearly erroneous and will cause material injustice, that it conflicts with a Supreme Court decision or another Court of Appeals decision, or that the issue involves a legal principle of major significance to the state’s jurisprudence. MCR 7.305(B)(3), (5). The application is due within 42 days in a civil case and 56 days in a criminal case, counted from the Court of Appeals order or opinion resolving the appeal. MCR 7.305(C)(2). The other side has 28 days to answer, and there is no oral argument unless the Court orders it. MCR 7.305(D), (H). If leave is denied, the Court of Appeals decision becomes the final adjudication. MCR 7.305(I)(3).

An appeal has its own clock, separate from the deadline to file the lawsuit in the first place. For an example of that first clock, see my post on the deadline to file an injury lawsuit in Michigan. How I approach appeals is on my Michigan appeals lawyer page.

If you are weighing an appeal and the deadline is close, call my Grand Rapids office at (616) 213-3327 or use the contact page. This post is general information, not legal advice, and reading it does not make me your lawyer.