Appellate Advocacy

An unsuccessful party in a lawsuit or administrative proceeding may file a timely appeal to an appropriate superior court empowered to review a final decision, on the ground that it was based upon an erroneous application of law. The person who initiates the appeal, called the appellant, must file a notice of appeal, along with other necessary documents, to commence appellate review. The person against whom the appeal is brought, the appellee, then files a brief in response to the appellant's allegations.

Usually, review in the federal and state courts goes through two stages: an appeal from a trial court to an intermediate appellate court, and then to the highest appellate court in the jurisdiction. An appeal may be granted as a matter of right or as a matter of certiorari (at the discretion of a superior appellate court). For example, a party may appeal from a federal district trial court to a U.S. court of appeals as a matter of right, but may appeal to the U.S. Supreme Court only by a grant of certiorari. An appellate court may hear an appeal only if the decision presented meets the statutory requirements for review.

The right to appeal is limited to the parties to the proceedings who are aggrieved by the decision because it has a direct and adverse effect upon them or their property. Also, an actual case or controversy must exist at the time of review. Issues that have become moot while the appeal is pending and cases that have been settled are not reviewable.

For a case to be appealable, a final judgment or order must have been reached by a trial court. A judgment is considered final for purposes of appeal when the action is ended in the court where it was brought and nothing more is to be decided.

An appeal must be made within the time prescribed by statute or by the rules governing the appellate court. The time for filing an appeal begins to run once a final decision has been made by the trial court. The appellant must file a notice of appeal with the clerk of the appellate court in order to begin the appeal, and send a copy to the appellee. If the appeal process is not begun within the time set by statute, any right to appeal is lost. If extenuating circumstances exist, an extension of time for filing the appeal may be granted.

The appellate court can review only the trial court record and the briefs filed by the appellant and appellee. If permitted by the appellate court, AMICUS CURIAE briefs may also become part of the record on appeal. (Amicus curiae means "friend of the court." A person who is not a party to the action may petition the court for permission to file such a brief.) The briefs must contain the facts of the case, the grounds for review, and arguments relating to the issues raised.

The appellant's brief must specifically discuss the alleged errors that entitle the appellant to a reversal of the trial court's decision and discuss why each ruling was wrong, citing authority such as a case or statute that applies to the particular point at issue. The appellee may file a brief containing arguments against reversal, discussing why the trial court's ruling was correct. Only conclusions of law, not findings of fact, made by a lower court are reviewable. Appellate courts can decide only issues actually before them on appeal.

The appellate court must decide whether the errors alleged to have been made by the trial court are harmless or prejudicial. If an error substantially injures the rights of the appellant, it is called a prejudicial error, or reversible error, and warrants the reversal of the final judgment or order. If the appeals court determines that the error is technical or minimally affects the rights of the parties or the outcome of the lawsuit, it is considered a HARMLESS ERROR and insufficient to require a reversal or modification of the decision of the trial court.

The appellate court may hear oral arguments from each side. These arguments, which usually last 10 to 15 minutes for each side, are intended to help the court understand the issues and to persuade the court to rule in favor of the arguing party. During the arguments, the appellate judge or judges may interrupt with questions on particular issues or points of law.

After reviewing the appeal, the appellate court may affirm the decision of the lower court, modify it, reverse it, or remand the case for a new trial in the lower court. When a decision is affirmed, the appellate court accepts the decision of the lower court and rejects the appellant's contention that the decision was erroneous. When the appellate court modifies the lower court's decision, it accepts part of the trial court's decision and determines that the appellant was partly correct in saying that the decision was erroneous. The trial court's decision is then modified accordingly. In reversing a decision, the appellate court indicates that it agrees with the appellant that the lower court's decision was erroneous. The party who lost the case at the trial court level then becomes the winning party in appellate court. Occasionally, a decision will be reversed but the lawsuit is still unresolved. Then, the appellate court orders that the case be remanded (returned) to the lower court for the determination of issues that remain unresolved.