Appeals

When you appeal, hiring a firm who has actually done significant appellate matters is a necessity.  Few attorneys in Arizona have the family law appellate experience of the Berkshire Law Firm.  Keith Berkshire argued the last two appellate cases taken by the Arizona Supreme Court and has a significant amount of published cases to his name.  Keith also has won two cases at the Supreme Court of the United States, overturning the Arizona Supreme Court on both.

The Berkshire Law Office has won one of the most important due process decisions in Volk v. Brame, argued at the Court of Appeals by Keith Berkshire, reasserted the constitutional protections for due process against artificially short hearings in Family Court.  The Volk decision will undoubtedly be cited to for the foreseeable future by Family Law Attorneys and litigants when trial courts try to restrict their time to present evidence.  This was a monumental win for the Berkshire Law Office and for Arizona family court litigants.

Appeals are a complicated and precise area of practice, which requires a skilled writer, with an analytical ability to parse through complex legal issues.  An Appeal is not a chance to "re-try" the case, but rather to point out legal or factual issues within a trial court's ruling.  Appeals rest mainly on the "Briefs" written by the attorneys, which necessitates persuasive writing.  Good appeals also start with proper representation at the trial court, to ensure that all appealable issues are raised in the trial court.

Keith Berkshire frequently teaches on appellate matters, has argued successfully in the Court of Appeals, in both Division 1 and Division 2 and has had cases of his become new Arizona precedent.  No matter the area of family or juvenile law, the Berkshire Law Office can assist you with your appeal, including trial consultations to ensure that you case can be appealed.

Special Action:

In Arizona, a special action is the name used for traditional writs of certiorari, mandamus, and prohibition.  AZ ST SPEC ACT Rule 1.  Under the law, a party affected by a judicial decision may apply to the court for a special action review of the lawfulness of the decision. The petition, however, is limited to the following questions:

·         Whether the defendant has failed to exercise discretion which he has a duty to exercise; or to perform a duty required by law as to which he has no discretion; or

·         Whether the defendant has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority; or

·         Whether a determination was arbitrary and capricious or an abuse of discretion.  AZ ST SPEC ACT Rule 3.  

Because a Petition for Special Action requests an extraordinary form of relief, the decision to accept jurisdiction of the special action is highly discretionary with the court.  In addition, the party filing the Special Action Petition has the burden of proof with regard to the discretionary factors.  AZ ST SPEC ACT Rule 3, State Bar Committee Note.

Special action relief is not available when there is an adequate remedy available by filing a traditional appeal.  Swain v. Hicks ex rel. county of Maricopa, 235 Ariz. 209, 210, (App. 2014). Additionally, the court is more likely to grant special action jurisdiction when there is no statutory right of appeal, because there is a lack of a plain, speedy, and adequate legal remedy available to the party.  Samaritan Foundations v. Superior Court In and For County of Maricopa, 173 Ariz. 426 (App. 1992).

Because a request for special action is such a specialized area of law, it is imperative that you seek the help of an attorney who has extensive experience in special actions.  The Berkshire Law Office handles many special action requests, both for current clients and for parties represented by an attorney not comfortable making a special action review request.  This experience allows the Berkshire Law Office to competently assess your case and determine if special action is appropriate in your situation.

Some of the appellate matters handled by Keith include: