Appeal

The review of a trial court's decision by a higher court - what can be appealed and when (the final-judgment rule and its exceptions), the notice of appeal and why missing it is fatal, what "standard of review" means and why most appeals are lost on it, preserving error at trial, the record and briefs, and what an appellate court can and cannot do with the result.

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What it means

An appeal is not a new trial. It is a review of the trial court's decision, on the record made below, by a panel of judges who read the briefs, may hear a short oral argument, and decide whether the trial court made a legal error serious enough to change the outcome. No new evidence is taken and no witnesses testify. In most systems the losing party has a right to one appeal from a final judgment - the order that ends the case as to all claims and all parties - and any further review, by a state supreme court or the United States Supreme Court, is discretionary and rarely granted. Rulings made during a case generally cannot be appealed until the end; the exceptions include orders granting or refusing injunctions, certain orders certified by the trial judge as involving a controlling question of law, class-certification rulings, and a small class of "collateral" orders that would be effectively unreviewable later.

The appeal is started by filing a notice of appeal within a period the rules fix from entry of judgment, and that deadline is jurisdictional: a notice filed a day late ends the appeal, and no showing of merit revives it, though a timely post-judgment motion (for a new trial, or to alter the judgment) postpones the start of the period. Filing an appeal does not automatically stop the winner from enforcing a money judgment; the appellant must post a supersedeas bond or obtain a stay. The appellant then orders the transcript, the record is assembled, and the parties file briefs on a schedule; the appellee may cross-appeal from any part of the judgment it wants changed. Only errors that were raised in the trial court - by objection, motion or request for a ruling - are ordinarily reviewable; an issue raised for the first time on appeal is forfeited unless it amounts to plain error, which is why lawyers "make a record" during trial even when the objection will be overruled.

The single most important idea in appellate practice is the standard of review, which fixes how much deference the appellate court gives the ruling below. Questions of law - the meaning of a statute or contract, whether the right legal rule was applied - are reviewed de novo, with no deference. Findings of fact by a judge are reversed only if clearly erroneous, and a jury's verdict only if no reasonable jury could have reached it. Discretionary rulings - evidence, scheduling, sanctions, most case-management decisions - are reversed only for an abuse of discretion. Even an established error is not enough: the appellant must show it was prejudicial rather than harmless. The court may affirm, reverse, vacate, or modify, and may remand for further proceedings under its instructions; it may affirm on a ground the trial court never reached. Costs follow the result, and a frivolous appeal can be sanctioned. The whole process usually takes many months, and the losing party may seek rehearing by the panel or by the full court before turning to discretionary review.

Where this comes from

When people hire a lawyer for this

The first thing to do after an adverse judgment is to calendar the notice-of-appeal deadline, because everything else can be repaired and that cannot; the second is to ask whether the case is genuinely appealable and on what standard, since an appeal from a discretionary ruling or a jury's view of the facts is usually a poor investment. Appellate work is a distinct skill and many trial lawyers refer it out. A winning party facing an appeal should make sure a bond or stay is in place before any enforcement, and should consider a cross-appeal deadline of its own. Self-represented appellants are held to the same rules on timing, record and briefing as lawyers, and most losses in that category are procedural.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• Attorney-Client Privilege and Work ProductThe two protections that keep what a client tells a lawyer, and what a lawyer prepares for a case, from being forced into evidence - what the privilege covers and what it does not, who holds it and how it is waived, the crime-fraud exception, the separate and narrower work-product doctrine, and how each is asserted in discovery.
• Burden of Proof (Standards of Proof)Who has to prove what, and how convincingly, before a court will rule for them - the difference between the burden of production and the burden of persuasion, the three standards (preponderance of the evidence, clear and convincing evidence, beyond a reasonable doubt) and where each applies, presumptions that shift the burden, and why the burden decides cases where the evidence is in balance.
• Complaint and Answer (Pleadings)The documents that start a civil case and frame what it is about - what a complaint must contain, how a defendant answers it, what an admission, denial and affirmative defense each do, counterclaims and cross-claims, and what happens when a pleading is late, deficient or needs to be amended.
• Contempt of CourtThe court's power to punish disobedience of its own orders - the mechanism that makes a court order more than a piece of paper.
• Court Fee Waiver (In Forma Pauperis)How a person who cannot afford court filing fees asks the court to excuse them - the federal and state procedures, who usually qualifies, and what a waiver does not cover.
• Default JudgmentA judgment entered because the person sued did not respond in time - the way most consumer debt lawsuits actually end.
• DepositionSworn, recorded, out-of-court questioning of a witness by the opposing lawyer, before any trial.
• DiscoveryThe pre-trial process in which each side must hand over relevant evidence to the other.
• Expert Witness (Daubert and Frye)A witness allowed to give opinions rather than only facts because of specialized knowledge - who qualifies, the gatekeeping test a judge applies to the reliability of the method (Daubert in federal court and most states, Frye in the rest), the written report and deposition that precede trial, the difference between a retained expert and a treating professional, and why a case can be lost when its expert is excluded.
• Fee Agreement and RetainerThe engagement letter that sets what a lawyer will do and how they are paid - hourly, flat or contingent fees, retainers held in trust, costs, and what to do about a fee dispute.
• Injunction and Temporary Restraining OrderThe court orders that require a party to do or stop doing something rather than pay money - the three stages (temporary restraining order, preliminary injunction, permanent injunction), the four-factor test for emergency relief, the bond the applicant must post, how an order is enforced through contempt, and why a violated order is obeyed first and challenged second.
• Jurisdiction and VenueThe three questions every lawsuit has to answer before its merits can be heard - whether the court has power over this kind of case (subject-matter jurisdiction), power over this defendant (personal jurisdiction), and whether this is the right place within the system to bring it (venue) - what each requires, how each is challenged, and why a judgment entered without jurisdiction is void.
• Limited-Scope Representation (Unbundled Legal Services)Hiring a lawyer for one defined part of a legal matter - advice, drafting a document, or a single hearing - instead of the whole case, and the written agreement that sets the boundary.
• Mediation and ArbitrationTwo ways of resolving a dispute outside a trial that are constantly confused - one produces an agreement you can walk away from, the other a decision you generally cannot appeal.
• Motion to DismissA request to end a case at the outset on the basis that, even if everything alleged is true, it does not amount to a legal claim.
• Pro Bono Legal HelpFree legal work by volunteer lawyers - what the professional rules ask of lawyers, how people of limited means are matched with a volunteer, and why it is not the same as legal aid.
• Release and Settlement AgreementThe document that ends a claim by giving up the right to bring it - normally final, and normally broader than people expect.
• Representing Yourself (Pro Se)The right to conduct your own case without a lawyer - available in almost every civil court, and held to almost the same standards as a lawyer.
• Res Judicata and Collateral Estoppel (Preclusion)The rules that stop a dispute from being litigated twice - claim preclusion, which bars a second suit on a claim that was or could have been decided, and issue preclusion, which bars re-arguing a specific issue actually decided, the elements of each, who is bound, the exceptions, and why "could have been raised" is the part that surprises people.
• Service of ProcessThe formal delivery of court papers that gives a court power over the person sued - and the step whose failure undoes more judgments than any other.
• Small Claims CourtA simplified court for lower-value disputes, designed to be used without a lawyer - and in some states lawyers are not allowed in it at all.
• Statute of LimitationsA deadline, set by statute, after which a legal claim can no longer be brought at all.
• SubpoenaA court-backed order to give evidence or hand over documents - enforceable against people who are not parties to the case at all.
• Summary JudgmentA ruling that decides a case, or part of one, without a trial because the essential facts are not genuinely in dispute.

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