Question 1

When can a case be appealed?

Accepted Answer

The following is a short overview of appellate law. Appellate rules vary from state to state, and between the state and federal system. However, the appellate procedures in most jurisdictions have some common elements. Beginnings of an Appeal All cases begin in a trial court, and at some point, the case will end in the trial court. The case could be dismissed by the judge early in the litigation, or a final judgment could be entered after a full trial. But at some point, the proceedings in the trial court will be concluded. At that point, a party unhappy with the outcome (typically the losing side, but sometimes even the winning side) can appeal. An appeal typically begins with filing a notice of appeal in the trial court. The party appealing -- known as the "appellant" -- must also designate an appellate record. The appellate record consists of materials from the trial court that the appellant would like to present to the appellate court and use in appeal. Standards of Appellate Review Appellate courts do not retry cases or hear new evidence. Instead, appellate courts review what occurred in the trial court to see if the proper procedures were followed and the proper law was applied. Because of the limited nature of this review, the issues properly raised on appeal are significantly different from those that are raised at trial The appellate court will usually defer to the trial court or jury on factual issues. However, the appellate court has the final word on what the law is. On issues of law -- for example, the interpretation of a statute or the Constitution -- the appellate court will not defer to the trial court but will instead independently decide the issue. On an appeal after after a pre-trial dismissal -- for example, after a summary judgment motion or a demurrer -- the appellate court will usually review the materials and independently decide whether the case should have been dismissed or whether it should have been allowed to go to trial. On an appeal from a judgment after a trial, the appellate court will reverse the judgment only if it finds the trial court committed legal errors that were prejudicial during the trial. Examples of such legal errors include the trial court giving erroneous jury instructions, erroneously admitting or excluding evidence, and failing to follow proper procedures. If the appellate court finds such legal errors, the Court will then determine whether these errors were prejudicial. A legal error is considered prejudicial only if there is some reasonable chance that it was likely to have effected the result in the case. Thus, minor legal errors are usually not grounds for a reversal. Briefing In a typical case, the parties will file a total of three briefs with the court. The appellant begins with an opening brief. The appellant's opening brief should explain the facts and procedural history of the case, and then explain why the appellate court should reverse. The non-appealing party -- usually called the "appellee" or "respondent" -- then files a responsive brief. In the brief, the appellee or respondent argues why the trial court reached the right result and why the appellate court should not reverse. Finally, the appellate can file a reply brief. In this brief, the appellant can argue why the respondent's claims are wrong. However, the appellant may not make new legal argument in the reply brief; the appellate may only "reply" to the respondent. Appellate Panel and Oral Argument Appeals are decided by an appellate panel. Usually the appellate panel in an intermediate appellate court consists of three judges chosen randomly from the pool of available appellate judges on the courts. In appeals to state supreme courts and the U.S. Supreme Court, the entire court usually hears the appeal. State supreme courts typically have 7 justices, and the U.S. Supreme Court has 9 justices. Once the briefing is completed, the appellate court will hear oral argument. The time between the close of briefing and oral argument varies tremendously between different courts. The oral argument is typically 30 minutes at the most, and is often less than 10 minutes. By the time of oral argument, the judges on most appellate courts will have read the briefs and thoroughly considered the issues. In the federal courts and some state courts, the court may choose to decide a case without the necessity of oral argument. At the close of oral argument the case is submitted to the appellate court for a decision. Decision The appellate panel will usually issue a written opinion explaining why it reached the decision that it did. Like the time between briefing and oral argument, the time between oral argument and the written decision varies considerably between different courts. If the appellate court deems it appropriate, the written opinion will be published in the official reports and will be binding authority for litigants in the future. Review by a Higher Court A party who is dissatisfied with the results on appeal can petition a higher appellate court to review the case. In most states, this would be the state supreme court. In the federal system, it is the U.S. Supreme Court. (If a federal issue is involved, the U.S. Supreme Court can take cases from the highest state appellate courts.) With a few exceptions (like death penalty appeals), the state supreme courts and the U.S. Supreme Court are not required to take any particular case; they choose what cases they will decide. Consequently, the petition asking the higher court to take review must be carefully drafted. Interlocutory Appeals and Appellate Writs As discussed above, most appeals involve cases that have been concluded in the trial court. However, a party can sometimes take an appeal from a trial court order before the case is over. Such appeals are called interlocutory appeals. Similarly, a party can sometimes ask an appellate court to issue an order -- called a writ -- requiring the trial court to modify one of its orders. The circumstances in which a party can file an interlocutory appeal or a petition for an appellate writ vary from court to court and are often very technical.

Question 2

What are the steps of making an appeal of a lower court's decision?

Accepted Answer

An appeal is the process of having a higher court review a lower court's decision. Appeals can be from criminal and civil courts, and often from government administrative decisions. The party taking the appeal is referred to as the appellant, and the opposing party is called the appellee. Deciding Whether to Appeal Prior to taking the appeal, consideration should be given to whether the appeal has merit, and the chances of winning that appeal. Often the losing party on appeal must pay "costs" on appeal, which include costs of the opposing party to print and serve documents for the appeal and any docketing fees. If the appeal is considered frivolous, sometimes the losing party must also pay the other party's attorney fees. Appeals can be taken regarding a court's procedural rulings, findings of fact, and findings of law. A court of appeals reviews these different areas with varying "standards of review". For example, in a traffic case, if a police officer testifies their radar gun said you were doing 45 MPH in a 35MPH zone, and you testify you were going 25MPH, and the judge or jury believes the officer and finds you guilty, you stand little chance of winning the appeal. This is because the court of appeals does not re-hear a court case in its entirety and make its own findings of fact. A court of appeals gives great deference to the findings of fact by a judge or jury and only if it can be shown that no rational person would have found in favor of the other party based on those facts, factual findings aren't overturned on appeal. However, issues of law are reviewed "de novo" on appeal. For example, if there were no speed limit posted, and the judge ruled that on all 4 lane road within a city, the speed limit is 35 MPH, and found you guilty for doing 45 MPH in a 35 MPH zone, if you can show that you raised at trial the argument that the state law actually says that on all 4 lane roads within a city the speed limit is 45 MPH, the court of appeals reviews that issue again and issues a ruling based on its own findings on appeal. Lastly, a judge makes numerous procedural rulings. Those are reviewed for abuse of discretion. If a judge so far exceeds what other judges would do in similar circumstances, the judge's procedural ruling would be overturned on appeal. The following are the general steps of how the appeal is taken, and each courts' rules should be consulted to determine the exact process and time limits. Notice of Appeal A notice of appeal is what initiates the appeal process. It must generally be filed with the trial court within 30 days of the date when the court decision you want to appeal is entered. The notice of appeal typically identifies the ruling or decision that is being appealed and states to which court it is being appealed to. It is filed with the clerk of the trial court. Prior to filing the notice of appeal you can often file with the trial court a motion to reconsider, which allows the judge to review the decision, usually based on some key fact the judge missed, a new law which affects the outcome of the case. Once the judge rules on the motion to reconsider, the time to file a notice of appeal usually starts to run from that date. In some cases such as civil appeals, the person taking the appeal must pay a docketing fee. If the filing fee can't be afforded, the party taking the appeal can file a motion to proceed without paying the docketing fee. It is formally called a motion to proceed in forma pauperis. Record on Appeal The next step is to prepare the record on appeal. The record on appeal consists of all of the proceedings in the trial court. If at trial, a court reporter reported the trial proceedings, you must specifically ask the reporter for the trial transcript and make that part of the record on appeal. If there are other documents in the case such as a procedural motion that was made to the judge and you want that reviewed, you must make sure that is made part of the record. The record on appeal is used by the appellant to support their argument that the outcome in the trial court was incorrect. For example, if you argue on appeal that you showed the trial judge that the speed limit on 4 lane roads in a city is 45 MPH, and therefore you should win the appeal, the court of appeals must see evidence of where you actually told the trial judge that. That is what a record on appeal is for. When making that argument on appeal, you would point out to the court of appeals that on page 14, line 22 of the trial transcript you told the judge that 4 lane roads within a city have a 45 MPH speed limit per the state vehicle code. File a Brief A legal brief is where you make you arguments that the outcome in the trial court was incorrect. Where necessary when making legal arguments, you would cite to the record on appeal to show the factual support for your argument. Legal briefs often have a specific format that must be followed per court rules. Most briefs must contain a table of contents, a tables of court cases which are cited in the brief to support your arguments, a page which lists the issues you believes the trial court got wrong. A brief would then go through each of those issues and show why you deserve to win the appeal. It must be remembered that you can not raise new legal arguments or factual matters on appeal if those were not first raised in the trial court. So if your appeal depends on material not presented in trial court, the court of appeals is generally going to ignore that new material. If new evidence is discovered after trial that would have made a difference in the outcome, you would present a motion in the trial court to re-hear the case based on that new evidence.

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