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Not All Appeals Are Created Equal

On Behalf of | Apr 3, 2019 | Litigation

The New Hampshire Supreme Court (“Supreme Court”) grants all litigants the right to seek an appeal from a decision issued by a trial court or administrative agency.  The majority of the appeals are called mandatory appeals.  A mandatory appeal is an appeal that the Supreme Court must accept and issue an order after reviewing the arguments raised by the appealing party.

However, there are some cases which are called discretionary appeals.  A discretionary appeal means the Supreme Court does not have to accept the appeal even if it is timely filed.  The most common example of a discretionary appeal is an appeal that has taken in a post-divorce action such as an action to modify child support or an action to modify a parenting plan.

In a discretionary appeal, the appealing party must inform the Supreme Court of the issues that it wants to argue and, unlike the mandatory appeal, present an argument to the Supreme Court as to why this appeal merits consideration by the Supreme Court.  Merely voicing one’s displeasure with the lower court’s decision generally will not be enough to convince the Supreme Court to hear a discretionary appeal.   Instead the party filing the discretionary appeal should, for example, clearly show the Supreme Court that the trial made an error of law (misinterpreting a statute, a prior Supreme Court decision or regulation), or decided an issue of law that has not been previously explained or addressed by the Supreme Court.

Like mandatory appeals, the deadline to file a discretionary appeal is limited to 30 days from the date of the Clerk’s Notice of the lower court decision.  The parties filing notice of discretionary appeals are strictly limited to how many pages a notice of appeal can contain.  It is therefore highly recommended that anyone seeking to file a discretionary appeal should consult with an experienced appellate attorney to help them craft the most convincing argument to the Supreme Court.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A.  Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].