The Appellate Process


An appeal typically begins with filing a notice of appeal in the trial court which ruled unfavorably against one of the parties.  This party becomes the appellant; the party who received the trial court’s favorable ruling is known as the respondent. After filing a notice of appeal, the appellant selects materials from the lower court record that the appellant would like to present to the appellate court and use in the appeal.

The Appellate Briefs

The appellant begins with an opening brief. The appellant’s brief sets forth the errors of fact and law made at the trial level and the basis for appellate reversal.

The respondent then submits a responsive brief which sets forth reasons why the trial court reached the correct decision and why the appeal should be denied.

If the respondent has raised new issues of fact or law, the appellant has the opportunity to counter these through the filing of a reply brief.

An appeal is not a new trial. 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 prior case law, or a statute, or the Constitution — the appellate court will not defer to the trial court but will instead independently decide the issue.

If the appeal is based upon the granting of a summary judgment motion, 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 — that is, likely to have changed the outcome — during the trial. Thus, minor legal errors are usually not grounds for a reversal. This rule is often referred to as the “harmless error” rule.

The appellate panel will usually issue a written opinion explaining why it reached the decision that it did.

Appealing the Appellate Court’s Decision

A party who is dissatisfied with the results on appeal can petition a higher state appellate court to review the case. If a federal issue is involved, the U.S. Supreme Court can accept appeals from the state courts. Except in death penalty cases which are automatically reviewed at the highest state and federal court level, a state’s highest court or the U.S. Supreme Courts are not required to take any particular case for review. They choose what cases they will decide.