The Appeal Process

THE BASICS OF AN APPEAL

When a party has lost in a lower court and believes that errors affected the outcome, the party may "appeal" the case to a higher court. Appeals are generally categorized in two ways: (1) an appeal "as of right" and (2) an appeal "by permission." An appeal "as of right" is an appeal where the party can automatically bring the case to the appellate court. An appeal "by permission" is an appeal where the party must first ask the appellate court for permission to appeal the case. For example, a party generally has an appeal "as of right" from an adverse judgment after trial. On the other hand, a party must generally ask a state’s highest court or the Supreme Court of the United States for permission to appeal to those courts. The determination of whether an appeal is "as of right" or "by permission" is generally governed by statute.

COMMENCING AN APPEAL

An appeal "as of right" is typically commenced by filing and serving a "Notice of Appeal." This is a document that describes the order or judgment challenged, the court from which the appeal is taken, and the court to which the appeal is going. An appeal "by permission" is typically commenced with a motion to the appellate court stating the order or judgment sought to be appealed and the grounds or reasons that the appellate court should take the case. A Notice of Appeal and a motion for permission to appeal must be filed and served timely.

UNDERSTANDING THE APPELLATE COURT SYSTEM

The United States and each state generally have a three tier court system:

(1) Trial court
(2) Intermediate appellate court
(3) Highest federal or state court

For example, the United States has the following system:

(1) United States District Court
(2) United States Court of Appeals
(3) Supreme Court of the United States

In general, the parties must first appeal to an intermediate appellate court before attempting to appeal to the highest court.

COMPONENTS OF AN APPEAL

An appeal has the following components:

• Record (or Appendix)
• Appellant’s Brief
• Respondent’s Brief
• Reply Brief (optional)
• Oral Argument
• Court’s Decision

The Record (or Appendix)

All appeals must be based on "the record." Papers and documents that make up "the record" are typically defined by statute. For example, transcripts are typically part of the record, but trial memoranda are not. An appeal is restricted to the facts contained in the record. A skilled appellate attorney combs the record to gather all relevant facts for the issues raised. An appendix, used in some courts, contains only that part of the record that applies to the legal issue(s) in the appeal.

Appellant’s Brief

The Appellant is the party who lost in the trial court. The Appellant, usually with the advice of counsel, chooses the issue(s) that will be raised on the appeal. Each issue is separately stated in a "Point." The Point contains the legal argument on the issue and is supported by applicable law and facts.

Respondent’s Brief

The Respondent is the party who won in the trial court. The Respondent "responds" to the issue(s) raised by the Appellant. The Respondent’s brief is also organized into "Points" that contain the legal arguments in opposition to the Appellant’s issue(s).

Reply Brief

The Appellant, if he or she should choose, may "reply" to the Respondent’s arguments in a Reply Brief. For example, a Reply Brief may be filed when the Respondent has raised something new that the Appellant believes should be addressed.

Oral Argument

After the appellate court has reviewed the briefs and researched the issues, the attorneys typically appear before the court to orally argue the case. The court sets a time limit for oral argument. The Appellant goes first and the Respondent second. Some courts permit the Appellant to reserve time for rebuttal. Many courts grant oral argument as of right. However, some courts allow oral argument only by permission. An appellate court ordinarily does not render its decision at oral argument.

Court’s Decision

An appellate court issues a written decision or opinion on the appeal. Usually, the court explains its decision, discussing the issues and its reasoning. Rarely, the court simply affirms or reverses, but does not explain its decision.

IDENTIFYING THE ISSUES TO BE RAISED ON APPEAL

This is an very important part of the appellate process. The appeal will be based on the claim that errors were made in the court below, and that those errors should cause reversal or a modification. The Appellant chooses the issues to be raised on appeal and the Respondent responds to those issues. The Appellant must determine which issues are strongest and which are weakest. In general, weak issues should not be raised because they detract from stronger issues.

THE IMPORTANCE OF THE BRIEF

The brief is extremely important to an appeal. It states the critical facts of the case and the legal arguments that support a party’s position. The brief is particularly important because it is received by the appellate court early in the appeal and remains with the court until a decision is rendered. The court reads the brief before oral argument and uses it to conduct its own research on the issues raised. Contrary to a trial where a jury is told to withhold judgment until the end of the case, an appellate judge starts to decide the case with the brief.

Oral argument is important, but not as important as the brief. Oral argument occurs late in the decision-making process and is generally short, with usually ten or fifteen minutes allocated per side. Based on the foregoing, a party should not hold anything back for oral argument. If there is something to say, it should be said in the brief. It is the best opportunity to influence the court’s decision-making process.

Understanding Appellate Judges

In general, appellate judges are intelligent, experienced, and accustomed to seeing briefs in a particular format. Appellate judges have read hundreds of poorly written briefs. Appellate judges, like most judges, have heavy caseloads. Therefore, judges can become impatient if a brief is not clearly written.

Each appellate judge has one or more law clerks to assist them. Law clerks are lawyers who read the briefs, research the issues and discuss the merits of the case with the judges. Law clerks invariably try to catch an attorney in mistakes. In such way, the law clerks prove their worth to the judges.

Purpose of the Brief

The object of the brief is to persuade the court to rule for you. If what is said is not calculated to persuade, then the brief is ineffective. Style of writing is subservient to persuasion. Judges are not impressed by flowery writing. They are focused on ascertaining the critical facts and law that will decide the case. The brief must be credible. Every fact should be cited to the record.

The brief must take a position. The facts and law are viewed from the party’s perspective. The brief persuades by highlighting that which is favorable and distinguishing that which is harmful. The brief must gain and keep the attention of the judges. It should "lead with strength" by making the strongest argument first. The Respondent often responds in the order chosen by the Appellant, but is not bound by such order.

Criticisms of Briefs

Appellate judges have stated the following criticisms about briefs:

• unclear or illogical
• inaccurate
• failure to convey what is right or wrong
• boring
• failure to address adverse facts or law
• too many citations
• verbose
• irrelevant facts
• failure to cite to the record
• errors in grammar, typing, or spelling

PARTS OF THE BRIEF

The required contents of a brief are generally governed by statute. A brief typically includes the following parts:

Table of Contents

The Table of Contents is the first page that the judge sees in the brief. It lists each section of the brief and the page where the section begins. The Table of Contents is important because it provides the judge with an initial overview of the brief, and helps the judge to begin to understand what the appeal is about.

Table of Authorities

The Table of Authorities lists each case cited in the brief and the page where the case appears. It provides the judges and the law clerks with an easy reference for conducting their own research, and permits a comparison of the Appellant’s Brief with the Respondent’s Brief on the cases cited. Law clerks will likely read the cases cited.

Questions Presented

This section identifies the issues that are being raised on the appeal. Each issue is stated as a question.

Statement of Facts

The Statement of Facts is extremely important. Skillfully drafted, the Statement of Facts can dramatically enhance the chances of success on appeal. Most appellate judges have a substantial understanding of the law, having read thousands of cases. Therefore, the judge will subconsciously begin to apply the law that the judge already knows to the case as the judge reads the Statement of Facts. A well drafted Statement of Facts appears to be objective and impartial, but subtly persuades the judge by highlighting the positive and distinguishing the negative. Depending on the case, facts can be organized in a manner that may influence the judge. By the time the judge is done reading, he or she hopefully is left with the impression that they should rule for you.

Argument

In this section, the parties state the legal arguments on the issues. The legal argument takes a position. It is not subtle. It is overt and argues compellingly for one side. When necessary, the legal argument explains adverse facts and distinguishes or refutes adverse law. Each argument must be logical, concise, and supported by legal authority. A party may have multiple alternative arguments. Weak arguments can detract from strong arguments and judgment must be exercised on which arguments to make. The argument should progress to the desired conclusion. It should confirm the impression created by the Statement of Facts that the court should rule in the party’s favor.

Conclusion

The Conclusion states the relief requested. It may briefly reiterate key facts or arguments.

EFFECTIVE ORAL ARGUMENTS

A skilled attorney understands the dynamics of oral argument to achieve success.

The Object of Oral Argument

The sole object of oral argument is to persuade. Therefore, that which tends to persuade is helpful and that which does not is useless.

Familiarizing the Judges

Judges hear multiple oral arguments in a single session. When starting, an attorney should state the issue that he intends to discuss first, thereby orienting the judges. The attorney should also succinctly state the reasons for winning. He should not begin by stating the facts in detail. In general, appellate courts are "hot benches." The judges have already read the briefs and researched the issues. The judges want the attorneys to focus on the key areas of law that are most important to making a decision. If some facts are critical, the attorney artfully interweaves them into the legal argument.

Going for the Jugular

An attorney must quickly get to the core of his client’s case. He must boil the argument to its essence, driving home the key legal principle(s) or critical fact(s) on which winning depends. By so doing, he focuses the judges’ attention on the strength of his client’s case, creating a catalyst for important questioning and the best opportunity to persuade.

Handling Questions from the Bench

The attorney should welcome questions from the bench. There is nothing worse than the court’s silence, which can indicate that the judges are disengaged. A question is a window into the mind of a judge. Through the question, the attorney can gain insight into that which is important to the judge. The attorney should deal with the question when asked. He should never say: "I’ll get to that," a response that only frustrates the judge. A question, even if adverse, is an opportunity to persuade.