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The Appellate Process

Litigation and appeals are fundamental to our adversarial legal system. Litigation — the process of putting a case before a trial court — includes everything from the pret-rial procedures to a judgment or settlement. Although some types of appeals can take place during the litigation process, they typically occur after a decision has been reached by the court.

Whether at the state or federal level, trial and appellate courts perform different functions. At trial, the parties present evidence to the court to support their legal arguments, creating a factual record. After a decision has been reached at trial, the losing party may choose to appeal the decision to the relevant appellate court. For example, if a defendant is found liable in a civil trial in a US district court, that defendant may wish to appeal the decision to the appropriate federal court of appeals.

On appeal, the court may generally consider only legal issues — with few exceptions, the factual record established in the original trial cannot be altered. In other words, appellate courts do not simply retry cases; they cannot normally hear witnesses or weigh evidence.

The primary function of appellate courts is to review the application of law to the facts established by the trial court and determine whether the trial court made appropriate legal decisions within that framework. An appellate court will usually be given a transcript of all the testimony given at trial and copies of all evidence and exhibits, which they will use to determine whether the trial court made any significant legal errors, such as improperly admitting evidence or improperly applying the law to the facts as presented. Not all issues at trial may be brought before the appellate court; to be considered on appeal, a legal issue must have been preserved at trial. While appellate courts may sometimes review the factual findings of the trial court, in most situations these findings are only overturned if they are found to be “clearly erroneous.”

In the federal system, appeals are usually decided by a panel of three judges working together. Most states use a similar system, although the number of judges involved in the decision-making may differ. The party filing the appeal — referred to as the appellant — will file a written argument with the appellate court, known as a brief. In this document, the appellant will attempt to convince the court that some aspect of the decision at trial should be reversed. At the same time, the party defending the trial court's decision — referred to as the appellee — will also file a brief, arguing that the prior decision should be upheld.

Along with the written briefs, often an appellate court will give the parties the opportunity to come before the judges for oral arguments. During oral arguments, each party will be given a limited amount of time to discuss their position with the sitting judges. The judges will usually ask a number of questions to determine the strengths and weaknesses of the positions of the appellant and appellee. Attorneys for the two sides will sometimes be allowed to make a brief opening or closing statement. The entire process generally only lasts for thirty minutes or so, after which the judges will retire to their chambers to discuss the case.

Once an appellate court has reached a decision, one of the judges who participated in the hearings will usually author a document setting forth the legal and factual basis for the court's opinion. If the court elects to publish this opinion, the decision becomes the basis for future cases concerning the same issue. The appellate court will generally then remand the case back to the trial level for further proceedings consistent with the new findings.

Only a small percentage of cases heard by trial courts are appealed to the next level. For those that are appealed, the decision of the appellate court is often the final word in the case. In a small number of cases, though, either the appellant or appellee may feel that the decision made by the appeals court was in error. In these situations, the case may sometimes be appealed yet again, usually to either the relevant state Supreme Court or, in federal cases, to the United States Supreme Court.

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