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Appellate Practice

In an appeal, a higher court-an appellate or supreme court-reviews the decision of a lower court-generally a trial court or an administrative agency. Lawyers specializing in appellate practice handle the process of appealing a final judgment. This may happen in a civil or criminal case after a trial before a judge or jury, or after dismissal of a case upon disposition of a motion (such as a motion for summary judgment, in which a party has argued that there is no genuine issue of material fact in a case and that he or she is entitled to prevail as a matter of law). An appeal is typically brought before an intermediate court of appeals and, if necessary, to a supreme court.

Both the state and federal courts have avenues of appeal for civil and criminal cases. Most states have an intermediate, or appellate, court that hears cases from lower courts in the same geographic district within the state. Appeals from the appellate court are brought before a higher level court, typically called a supreme court. Appeals from decisions of federal district courts are brought in the court of appeals that has jurisdiction over the federal districts in one or more states. For example, appeals from the federal courts in California proceed to the Ninth Circuit Court of Appeals, while appeals from the federal courts in Washington, D.C. proceed to the D.C. Court of Appeals.

A party generally has an appeal as a matter of legal right after a case has proceeded to conclusion at the trial court level and all avenues of review within that court have been exhausted. A criminal defendant who has exhausted appeals at the state trial court level is entitled to seek a review of his or her case through a request to a federal district court called a writ of habeas corpus. In the writ, the defendant claims that he or she is wrongfully imprisoned because he or she has been denied rights, such as due process, under the U.S. Constitution. In civil actions, a plaintiff whose case is dismissed by grant of a motion to dismiss or a motion for summary judgment would proceed to an appeal after entry of judgment.

Not all issues can be appealed as a matter of right. For many issues the appellate court needs to be convinced that there is a compelling reason to take the issue for consideration on appeal. Some issues or decisions of the trial court are within the discretion of the judge and thus are subject to appeal for the judge's abuse of discretion. The appellate courts thus have standards of review, or different tests that are applied to determine whether the trial court erred in its decision. Few issues are considered de novo (completely new) at the appellate level. Rather, decisions of the trial court may be reversed only if, for example, legal error occurred.

In other words, cases are not retried by appellate courts. A manufacturer that loses a product liability trial, and is required to pay $800 million in punitive damages for their negligence, is not permitted a second trial of the case on appeal. Instead, the defendant must establish on appeal that no reasonable jury could have come to such a conclusion. A plaintiff that loses an antitrust case may argue that the jury instructions explaining the law to the jurors were erroneous, and thus appeal. However, the plaintiff must have properly objected to those instructions at trial and must demonstrate that the error was not insignificant (legally referred to as "harmless" error).

The appellate lawyer must carefully review the lower court record to determine the grounds on which the decision can be appealed, and she must draft detailed written briefs that set forth her party's position on appeal. In criminal cases lawyers must review the record to determine whether the evidence should have been excluded as a result of improper search and seizure or whether the jury was representative of the community. Seldom will the appellate court consider issues such as the credibility of witnesses, which is left for the trial court and jury to determine. Appellate attorneys may also present oral arguments in front of the appellate court or supreme court.

In a majority of cases, an appellate or supreme court affirms lower court decisions. However, the higher courts have a number of options on appeal-they can vacate (throw out) lower court decisions; reverse the decisions, deciding for the other party; or reverse and affirm some issues on appeal and remand (send back) other issues to the lower court.
For more information on the trial process in general, see the Criminal Law, Civil Litigation, and Tort Law chapters.

Reproduced from The Official Guide to Legal Specialties with permission. (c) 2000 Thomson Reuters/West. For additional information on this publication please visit http://west.thomson.com/products/law-students. Copyright granted via e-mail by Donna Gies, September 16, 2008.