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What Is an Appeal? | Explore Law Firms and Legal Advice

When someone involved in litigation loses in a court, they typically have the right to appeal the decision. The appeal process is about fundamental fairness, ensuring that the law is correctly applied.

But there are common misunderstandings about appeals, including a misapprehension that the appeals process is a do-over of a trial.

That’s not true, says William Marks, a litigation associate who is a member of the Supreme Court and appellate practice group at Paul, Weiss, Rifkind, Wharton & Garrison.

Instead, an appeal only addresses a narrow set of issues relating to mistakes made in a lower court, and “it’s not even a process of relief for every error,” Marks says.

Here’s how to understand the significance of appeals and how they work.

Understanding the Different Levels of Courts 

Since state and federal courts have procedural differences, it can be helpful to start with a framework. Marks says that although all courts consider the facts and law, these are the responsibilities of various courts:

  • A trial court determines the facts.
  • An intermediate appellate court figures out if the law was correctly applied to the facts.
  • A Supreme Court or final Court of Appeals reviews the law itself.

In the federal system, that all begins with a trial before one of the more than 670 district judges located around the country. The district judge is the sole arbiter of all legal decisions made during the trial.
At the appellate level, the U.S. is divided into 12 geographic regions, known as circuits, and the total number of judges in each circuit depends on its population. There is one additional federal circuit and other courts for special types of litigation.

For cases before a federal court of appeals, a panel of three judges hears each case and decides the outcome.

At the Supreme Court level, the nine justices decide a single case. Justices are also individually responsible for responding to emergency petitions and other circuit concerns.

An Appeal Involves a Question of Law 

An appeal is where the party who lost gets to seek a review of the decisions from a higher court, Marks says.

This could relate to anything that impacts the case – from an evidentiary ruling (for instance, barring someone’s testimony as hearsay) to a court’s dismissal of a case during a motion for summary judgment.

It can also relate to a particular context, such as if the trial court used the correct rule to determine a plaintiff’s eligibility for punitive damages.

An Appeal Does Not (Usually) Mean Relitigating Facts 

Appellate judges don’t hear direct testimony from witnesses like they would in a trial. Instead, they rely on a paper review, analyzing attorneys’ briefs and arguments, trial transcripts, and more. Therefore, appellate courts give great deference to a judge’s factual determinations and only overturn them in cases of clear error. And if the issue involves a trial court’s true judgment call, the reviewing judges apply an “abuse of discretion” standard to that review, he says.

In other words, an appellate court gives a trial court the benefit of the doubt when it comes to the facts, and the facts rarely change.

Elements for a Successful Appeal

Technically, a party in federal court can appeal almost any decision that a trial court makes. But in practice, appellate attorneys focus on the most egregious mistakes and limit appeals to a few significant issues.

“I really don’t like to go over three,” Marks says. “By five or more, it starts to hurt your credibility.”

To decide which issues they’ll challenge, Marks says that appellate lawyers consider three factors:

  • The appellate court’s standard of review.
  • Harm resulting from the error.
  • Preservation, which is whether or not the trial counsel preserved the right to appeal.

Next, the appellate attorney determines whether the mistake affected the outcome. If the mistake was harmless, “Even if you’re 100% right, you’re going to lose,” Marks says.
Lastly, the trial counsel must have objected to the mistake when it happened. Otherwise, they can waive the right to appeal.

Preservation is so crucial that, in large cases, appellant lawyers attend trials, just to help trial counsel preserve issues that could become grounds for an appeal, he says.

Most Appeals Are Filed After the Trial 

Under “the final judgment rule,” appeals should be filed after the end of the trial. Interlocutory appeals, which are appeals during ongoing litigation, aren’t usually allowed.

While there are exceptions to this rule, interlocutory appeals rarely succeed. The reason for this rule is to protect appeals court resources. The final judgment rule allows judges to review all of the issues at the same time.

The Process of Appealing a Federal Trial Outcome 

Once a party decides to appeal, it files a notice of appeal. It later files a brief with the court of appeals, laying out the argument for why the trial outcome must be overturned. The appellee files a brief refuting those arguments, then the appellant submits a final brief.

The parties’ attorneys appear before the panel of judges for oral argument, during which the judges ask the lawyers questions about weaknesses they’ve identified in the briefs, Marks says.

Then the appellate court renders its opinion. In the interest of fairness – letting each party argue on its behalf – the appeals judges can only base the decision on the issues raised by the parties themselves.

Decisions do not have to be unanimous. The majority wins the appeal.

Getting From the Federal Court of Appeals to the Supreme Court 

If a party wants to contest the court of appeals’ decision, it files a petition with the U.S. Supreme Court, asking the highest court to review the case.

The justices have discretion over most cases they hear. Types of cases that the Supreme Court will review include those where federal circuit courts have issued competing interpretations of a law or those that involve a dispute between states.

Once the Supreme Court accepts the case, the process is similar to that of the Court of Appeals, with briefs and oral arguments leading to the court’s decision.

Even Successful Appeals Don’t Necessarily Resolve the Entire Case

When the appellate courts decide on a question of law, the appellate court’s decision can end a case. But an appeal may also result in an instruction for the lower court to reevaluate an earlier decision in light of a different legal standard.

In that situation, the parties usually return to the same judge, where the litigation started. And depending on the issues, that’s when a second bite at the court apple might begin.

Sarah Goldberg
Sarah Goldberg

Sarah is a seasoned financial market expert with a decade of experience. She's known for her analytical skills, attention to detail, and ability to communicate complex financial concepts. She holds a Bachelor's degree in Finance, is a licensed financial advisor, and enjoys reading and traveling in her free time.

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