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Tuesday, May 21, 2013

2013 Changes in CT Appellate Procedure - What You Need to Know

By Geoffrey J. Miller

Connecticut Supreme Court Building; Photo Credit: J. Stephen Conn
This year there were several major changes to Connecticut appellate procedure.  These changes are important to understand because they change the articulation rules, other procedures and deadlines in the CT Practice Book.  Here are two of the most important changes:

1. Change to Practice book 61-10(b): On appeal, a case should no longer be dismissed SOLELY because an attorney failed to seek an articulation on a particular issue.  An articulation is an explanation of the reasons behind a ruling or part of a ruling.  Without knowing what the trial court did, it is hard for the appeals court to decide whether or not it was proper.

Here is an example of when an articulation is important:  In a divorce case, the court orders one spouse to pay significantly more alimony than seems reasonable.  On appeal, that party asserts that the court mistakenly used his gross income, not his net income, to calculate alimony.  Unfortunately for him, the decision is silent on how income was calculated.  Under the old rule, the attorney would have had to seek a timely articulation on this issue or he would automatically lose on appeal.  The appeals court would simply assume that the trial court acted properly because there was no evidence to the contrary.  Under the new rule, the case would be remanded for articulation on the gross/net issue.

This new rule is consistent with all nearby states and should reduce the need for Connecticut attorneys to seek unnecessary articulations just to cover all of their bases and preserve seemingly unimportant issues on appeal.  This is nice for attorneys who use to be caught between a rock and a hard place.  Asking for articulation on an unimportant issue would often frustrate an already overloaded judge, but not asking could be grounds for malpractice.

Tip: Despite the new rule, the majority of cases this year have not seemed to follow this procedure.  This may be because the courts are simply getting used to it, but for now it is still a good idea to seek an articulation, even for minor issues, until there is a stream of cases where the new rule is observed.

2. Changes to Practice Book 79a: There several changes to the child protection procedures and they are still being ironed out, but to sum it up: time is of the essence. Extensions and deadlines for child protection appeals,  have been drastically reduced.  The 40 day limit had been firmed up, so additionally filings do not add time to the clock.  This can mean that a reply brief may be due only a few days after opposing counsel's brief is filed.  If you work in this area of law, it would be wise to carefully read over the relevant revisions and if you have any questions, contact The Connecticut Advisory Committee on Appellate Rules.

See the updated Practice Book.