What’s an appeal de novo?

 

Considering it’s a dead language, there’s an awful lot of Latin in the law. Since so many of us are not Latin speaking, it can make reading the law, cases, and even general information about the law difficult – or, worse, nearly completely incomprehensible.

Understanding the direct translation of a phrase doesn’t necessarily enhance your understanding of a legal concept itself. So that can mean that your understanding of the processes involved in something is not as nuanced or as informed as it could be.

Hey, I’ve been there. I went to law school which, I can tell you, is full of random Latin phrases. I did not study Latin, either, so, like you – I went to the dictionary.

Habeas corpus. Ore tenus. Pendente lite. De novo. A mensa et thoro. Ab initio. Ad hoc. Ad litem. Affidavit. Caveat emptor. De facto. Pro bono. Duces tecum.

Like, it goes on and on and on. The influence of Latin on legal terms and phrases really can’t be overstated. And it makes legal writing – even when we’re trying to be clear and concise – difficult to understand.

You’re here to understand, am I right? And that’s so smart of you, because understanding is the first step towards making careful, considered, deliberate, purposeful decisions in your case that will help propel you forward from where you are now to where you’d like to be, when all is said and done.

Today, I’m writing about the term “de novo”. In Latin, it means “anew.”

Anew. That’s about as clear as mud, right? What on earth does “anew” have to do with anything?

Well, in the family law context, we’re usually talking about an appeal. An appeal, specifically, from juvenile court – where many matters, like custody, visitation, child support, spousal support, and, in some cases, protective orders, are determined – to circuit court. An appeal from juvenile to circuit court is granted automatically, and the case is heard “de novo”, or anew.

In this instance, de novo means that it’s a brand new do-over of a trial. None of the evidence from the juvenile court is carried up. The judge is a new judge (since the judges at juvenile and circuit court are different), and you (or your husband/child’s father if he lost at the lower court level) will get a brand new chance to present it all over again. You can change attorneys.

You’ll probably keep the same Guardian ad litem, but you’ll at least be prepared for what his or her report may contain. A motion to remove a Guardian ad litem is almost never a good idea, either, so, before you get ahead of yourself, you might want to talk to your attorney about your likelihood of success if you push this point (and don’t forget to also ask what the penalties might be for attempting to do this – like, that your GAL might hate you even more).

That’s not to say that nothing comes in from the lower court. If one of you makes a misrepresentation, you can correct it with the transcript from the court reporter – assuming that you had one. You can call the same witnesses, ask the same questions, introduce the same evidence, etc. But you can also make changes, add questions, do things a little differently. And, hey, maybe the new judge will have a different mindset than the old one.

Judges – like us regular folk – have varying mindsets about all sorts of things, from homeschool, to what’s appropriate in terms of overnight guests, the bad-ness (or lack thereof) of marijuana usage, to what resources a special needs child needs, what constitutes a material change in circumstances, and more. I’ve seen this happen – to win in juvenile court, only to turn around and lose on appeal, on the exact same issue that the lower court judge decided in our favor – and vice versa. Winning at the bottom is no guarantee of winning at the top, so it’s important to mount as good of a trial – or better – the second time around.

This is considered an appeal of right, meaning that it’s automatically granted. Though it can be more or less advantageous to you (depending on whether you won or lost at the juvenile court level), depending on the circumstances, whether or not a case is appealed is really just a procedural tactic that can be employed in specific situations.

Does it cost? Well, yeah. It’s a whole second trial. Which is inconvenient to defend against, if you prevailed at the lower court. Difficult to afford, regardless – because, hey, litigation is expensive, in any case. It’s especially expensive when done twice.

Do you need an attorney? Well, I mean, that’s up to you. An attorney is probably preferable, especially at the circuit court level, where the rules are more challenging and significant, especially for a pro se litigant (Latin again! This time, referring to a person who represents herself in court without assistance of counsel). Though there are no rules requiring that you hire counsel, it can be helpful!

Some people, too, choose to go at it alone in juvenile court, and then hire counsel at the circuit court level, where there are more rules and deadlines, and less help for people trying to go at it alone.

But an appeal, whether de novo or not, is not really good or bad; it’s procedural. It’s following the rules. It’s taking all of your available options, weighing advantages and disadvantages, and either moving forward – or not.

It can feel like being stuck in a perpetual cycle, too, because custody cases are modifiable based on a material change in circumstances. So, you can do the whole trial in juvenile court, find your case has been appealed to circuit court, and get a final order – only to have new petitions filed a year or more later back in the juvenile court, and do the whole thing again.

Some of the worst, most heavily contested cases DO work that way. It can feel like a constant ebb and flow of litigation.

Anyway, I hope that helps. There’s lots of Latin, so no shortage of reasons to be confused. For more information, or to schedule a consultation to discuss your confusion – or your options for becoming un-confunded (that sounds like a Harry Potter reference!), give us a call at 757-425-5200.

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