I. The Basics: Levels and Makeup of Trial Courts and Appellate Courts

In the United States, most trial courts are called either a “district court” (e.g., the U.S. District Court for the Western District of Missouri) or a “circuit court” (e.g., the Circuit Court of Jackson County, Missouri), and most appellate courts are either called a “court of appeals” (e.g., the U.S. Court of Appeals for the Eighth Circuit) or a “supreme court” (e.g., the U.S. Supreme Court).  Unlike in trial courts, cases in appellate courts always ultimately are heard before more than one appellate judge — usually in set groups (“panels”) of three or more judges.

Most jurisdictions in the United States have multiple levels of appellate courts.  This means that the unsuccessful party in a first appeal to a lower appellate court usually can seek an even higher appellate court to re-review the lower appellate court’s proceedings and decision.  But usually the highest appellate courts, including both the U.S. Supreme Court and most states’ highest courts, do not have to hear cases brought to them, and only will agree to hear a few cases they feel are important.

II. Terminology: True Appeals Versus Other Things Called Appeals

Other procedures that challenge an unfavorable judgment also sometimes are referred to as “appeals”, such as requests for the trial court who made the judgment to revisit it (especially in criminal cases, more properly called “post-conviction relief” or “habeas corpus”) or taking the decision of a lower, advisory trial court (such as a small claims court or a municipal court) to a higher trial court for a do-over (more properly called a “trial de novo”, Latin for “a trial anew”).

A true appeal — that is, from a trial court to an appellate court — is a far different thing.  It is a highly specialized procedure with its own specialized rules and viewpoints.  Appellate lawyers like Jonathan Sternberg practice in that procedure.

III. An Appeal is a Review, Not a Retrial

In the United States, an appeal is not a retrial. Instead, it is a review of what already happened in the trial court.  Because of this, proceedings in an appeal are largely just on paper.  Except in a few exceptional circumstances, there will be no new evidence on appeal and no opportunity to present any new evidence on appeal.  Witnesses do not testify in the appellate court.  The only appearance in person before the appellate court, if at all, is through an attorney at an oral argument, which is described below.

A trial court resolves questions of fact: the jury or judge hears testimony and other evidence and then decides who and what to believe and, consequently, what facts are or are not true.  Conversely, an appellate court resolves questions of law: it reviews a trial court’s decisions for legal “errors” that “prejudiced” the appealing party (who is called the “appellant”).

Because of these differences in function, an appellate court generally will not re-determine the facts of a case or second-guess matters that were within the discretion of a trial court judge.  And if a trial court’s error did not affect the outcome of a case, it is not “prejudicial” and generally cannot be grounds for the trial court’s judgment to be reversed.  Error that is prejudicial is called “reversible error”.

An appellate court therefore will defer to the trial court as much as possible.  So, if an appellant argues on appeal that there was insufficient evidence for the jury or judge to reach a decision as to a question of fact at issue in a trial, the appellate court will take all evidence in the winning party’s favor as true, ignore all evidence in the losing party’s favor, and then decide whether, viewed in that manner, the evidence was sufficient.

IV. Standards of Review: Intellectual Limitations on Appeals

In keeping with this overall deference to the trial court, appellate courts employ a variety of analytical lenses, called “standards of review”, to determine whether the trial court committed reversible error in making a decision.  The standards of review lie across a spectrum of how much deference is given to a trial court’s decision: from no deference at all to nearly total deference.

On one end of the spectrum is unlimited review (traditionally called “de novo review”, Latin for “review anew”), meaning the appellate court gives no deference to a decision the trial court made and instead determines the resolution for itself.  This usually only is for pure questions of law (e.g., Is a statute constitutional?  What does a contract mean?  What is the appropriate legal procedure?), because appellate courts can read and interpret the law as well as (if not better than) a trial judge.

On the other end of the spectrum is “abuse of discretion”, meaning the trial court’s decision only will be undone if no reasonable person would agree with what it did.  This is for a great variety of decisions that trial judges have discretion to make, such as, generally, whether evidence should be admitted or excluded, whether extensions of time should be granted, and many others.

Additional standards of review lie in between those two extremes.

Largely due to these standards of review and the unavoidable deference to the trial court on the vast majority of issues, an appeal is an uphill battle for the appellant.  The appellant has the burden to prove to the appellate court within the applicable standard of review that the trial court committed reversible error.  This means that statistically only a slim minority of appeals are successful.  Therefore, often a major function of an appellate lawyer like Jonathan Sternberg is determining the possible risks and rewards of a potential appeal from an adverse trial court decision and advising trial lawyers and clients on whether to appeal.

IV. Mechanics of an Appeal

A. Commencing the Appeal

The appellant begins by filing a “notice of appeal” in the trial court within time limits set by law.  Appeals usually only can be taken from “final” judgments — meaning the final decision at the end of a case in the trial court (e.g., sentencing a criminal defendant, divorcing a married couple, determining damages for a breach of a contract or an injury, dismissing a case, etc.).  The time limitations on filing the notice of appeal usually run from the date of that final judgment.

Depending on the jurisdiction, the notice of appeal typically is a short document, often just a form, which tells the trial court, “I’m appealing.”  An example from the Missouri state courts is here.  In some jurisdictions, a further document (often called a “docketing statement”) then must be filed in the appellate court to notify it that the appellant is appealing and has done so properly.  An example from the U.S. Court of Appeals for the Tenth Circuit is here.

B. The Record on Appeal: the Basis of the Appellate Court’s Review

Having filed the notice of appeal, the appellant then compiles all the relevant documents and exhibits previously filed in the trial court.  If the appeal comes after a trial, the appellant also orders and pays for a transcript of that trial.  Together, the documents, exhibits, and transcripts are called the “record on appeal.”  This, and only this, comprises the evidence and proceedings that the appellate court will review.

In some jurisdictions, the appellant might have to prepare copies of the record on appeal and physically or electronically file them in the appellate court at the beginning of the appeal.  In others, the clerk of the trial court or the court reporter might do the same later on.

C. Appellate Briefs: the Most Important Part of an Appeal

Appeals largely are decided on the basis of “appellate briefs”.  Briefs are formal, bound, and often lengthy written documents that tell the story of the case based on the record on appeal and make arguments as to what the appellate court should decide, taking into account what is in the record on appeal, what the law (including statutes passed by legislatures, rules announced by courts, and previous published appellate court and trial court decisions, called “case law” or “precedent”) says, and the applicable standards of review.

This means that the briefs are the most important part of an appeal.  Crafting a first-rate, persuasive appellate brief is a difficult and time-consuming process.  What a brief looks like and must include varies from jurisdiction to jurisdiction, based on set rules for each individual appellate court.  Appellate briefs are so highly particular in form and function that they largely are the reason appellate lawyers like Jonathan Sternberg exist at all as a specialized legal practice.

1. The Appellant’s Opening Brief

The appellant drafts and files the first brief (the “opening brief”, “initial brief”, or just the “brief of the appellant”).  It has two main functions: (1) to explain the relevant and unbiased facts of the case based on the record on appeal (a section called the “statement of facts” or “statement of the case”); and (2) to set out “issues” explaining specific ways, and citing relevant law, in which the appellant argues the trial court committed reversible error in making various decisions (a section called the “argument”).

Generally, the appellant only may bring up issues on appeal that it already brought (“raised”) to the trial court’s attention and ensured are ready for the appellate court to decide (“preserved”).  Essentially, the appellant must have given the trial court the opportunity to correct an alleged error before complaining about it to the appellate court.  But whether an issue adequately has been raised and preserved can be a complex question.  Because of this, appellate lawyers like Jonathan Sternberg often are hired before the end of a case in the trial court to assist a party’s trial lawyers in correctly raising and preserving potential issues for appeal, should that party be unsuccessful at trial.

The appellant’s opening brief is the single most important thing in the whole appeal.  It determines what the appellate court will be deciding and why.  Choosing the right issues on appeal and arguing them persuasively are the keys to succeeding as an appellant.  Failing to raise reversible issues generally waives them for the future.  After reading the appellant’s opening brief, the appellate court judges should: (1) know the facts of the case; (2) know why they have the power to hear the appeal; (3) know the appellant’s arguments for why the trial court’s judgment should be reversed and the law on which those arguments are based; and (4) be persuaded that the appellant likely is right.

An example of a winning appellant’s opening brief is here.

2. The Appellee’s Response Brief

The party who won in the trial court responds to and opposes the appellant’s appeal.  On appeal, that party is called the “appellee” or “respondent”, depending on the jurisdiction.

After the appellant has filed its opening brief, the appellee then gets to file its own brief, an equally complex document that often is equally lengthy.  In its brief, the appellee may make its own statement of the facts of the case based on the record on appeal as it sees them, and then will make counterarguments as to why the arguments the appellant made in its opening brief are wrong and instead, the trial court did not commit error.  The appellee urges the appellate court to keep the trial court’s decision in place (to “affirm” it).

An example of a winning appellee’s brief is here.

3. The Appellant’s Reply Brief

Because the appellant has the uphill battle, the silver lining is it gets the last word.

Once the appellee has filed its brief, the appellant has the option of filing a “reply brief,” usually a much shorter document than the previous two briefs.  The function of the reply brief is not to reargue the appellant’s opening brief, but rather to respond to the appellee’s arguments and show how the appellee is wrong.

An example of a winning reply brief is here.

4. Other Possible Briefs: Cross-Appeals and Amicus Briefs

If there are more than two parties on the appellant’s or appellee’s respective sides, or if the appellee has its own problems with the trial court’s decision and decides to appeal those issues itself (called a “cross-appeal”), there can be more than merely three briefs, and the procedure may become more complicated.

Additionally, people and organizations who were not parties to the case in the trial court, but who are concerned about what potential outcomes of the appeal might mean for themselves or society in the future, may seek to enter the appeal and file briefs of their own (called an “amicus curiae brief”, Latin for “friend of the court”) urging the appellate court to decide the case one way or another.  They might take the appellant’s position, the appellee’s position, or neither position.

D. Oral Argument

After all the briefing is complete, the appellate court may schedule an oral argument before a panel of appellate judges.  In some jurisdictions, both the appellant and the appellee have the right to an oral argument if either demands.  In others, an oral argument is held in virtually all cases.  But in most jurisdictions, especially federal appellate courts, oral arguments only are held in a comparatively small number of cases in which the judges feel it would be helpful.  If a case does not receive an oral argument, it will be decided on the basis of the briefs alone (called “submission on the briefs”).

An appellate oral argument is a fairly short and formal proceeding.  It is an opportunity for both the appellant and appellee to explain their various arguments to the appellate judges and answer the judges’ questions about the facts and arguments involved in the appeal.  The appellant’s attorney goes first, followed by the appellee’s attorney.  Then, if the appellant’s attorney wishes, he or she again has the opportunity to have the last word and make a shorter “rebuttal.”

Oral arguments usually last around half an hour.  But depending on the court, case, and circumstances, they can be shorter or longer (oral arguments in the U.S. Supreme Court usually last an hour or more).  After the oral argument, the case is deemed “submitted”.

An audio example of an oral argument before the Supreme Court of Missouri is here. (Jonathan Sternberg represented the appellee, and so argued second.)

E. The Opinion: the Decision on Appeal

Upon submission either on the briefs or after an oral argument, the appellate judges privately discuss, debate, and decide the outcome of the case by majority vote.  The decision is announced in a written prose document called an “opinion”, which often is lengthy.  The opinion cites and discusses the applicable law and the facts of the case and states in detail, for each of the appellant’s issues on appeal, who is wrong, who is right, and why.

In most appeals, the judges on the panel all unanimously agree and one judge is assigned to write the opinion.  An example is here.  But if one or more of the judges disagree with one or more of the majority’s conclusions, they can write their own opinion (called a “dissent”), which is attached at the end of the main majority opinion.   An example is here.  And if one or more of the judges on the panel agree with the conclusion but have other ideas they think should be addressed in writing, he, she, or they can write a separate opinion (called a “concurrence”), which also is attached to the majority opinion.  An example is here.

Appellate courts have a variety of options available as to how to decide the appeal.  First, as happens in the majority of appeals, if the appellate court disagrees with the appellant and finds no prejudicial error in the trial court’s decisions, it will “affirm” the trial court’s judgment.  But if it agrees with the appellant and does find one or more reversible errors, it will reverse the trial court’s judgment.  Depending on the errors found and the reasons for finding them, the reversal might be outright (with no further proceedings in the trial court) or “with remand” (“remanding” — sending back — the case to the trial court for some further necessary proceedings, e.g., a new trial).  Some errors also could warrant the appellate court to “modify” the trial court’s judgment, meaning correcting some aspect of the judgment without the need for further action by the trial court, effectively substituting its own judgment for the trial court’s.

F. Further Review After the Opinion

A party who is unhappy with the appellate court’s opinion can request the appellate court to “rehear” the appeal due to errors it argues the appellate court made.

If the case is in a lower appellate court, and some even higher appellate court also has the power to hear the appeal, the party also can ask that higher court to review the intermediate court’s decision.  Depending on the jurisdiction, this is called “transfer” to the higher court, “review” by the higher court, or “certiorari” (Latin for “to be informed”) to the higher court.  But as noted above, typically the higher court does not have to grant that request, and will deny it in most cases.  If the higher court grants the request, usually new briefs are filed in the higher court, a new oral argument is held, and a further opinion is released by that court.

V. The Bottom Line

An appeal is a difficult and complex proceeding both for clients and lawyers alike.  Whether to undergo this lengthy, time-consuming, and intricate process, and how to approach and handle it, are complicated decisions that should not be made lightly.  Having an appellate specialist like Jonathan Sternberg at a party’s or attorney’s side in evaluating the possibility of an appeal and ultimately to manage the appeal can be a great asset.

Jonathan Sternberg handles all aspects of what you have just read about, from advising attorneys on how best to prepare for an appeal all the way through preparing the record on appeal, drafting appellate briefs, presenting oral arguments, reviewing opinions, and preparing proceedings in higher courts.  If you are a party or attorney seeking assistance with any aspect of an appeal or related matter, we invite you to contact us anytime.