An appeal is a legal procedure by which the losing party in a lawsuit argues to a “higher” court (appellate court) that the case should have been decided in his favor. The “appellant” must summarize the facts of the case and then relate the facts to the applicable law.

The Appeal Process

The initial step in the appeal process is to file a “Notice of Appeal” from the “lower” court’s order or judgment. If there was a hearing or trial, the transcripts must be ordered. To “perfect” the appeal, the appellant must serve and file both a “record” and “brief.” The “record” consists of the court papers that led up to, and were the basis for, the court’s decision. The “brief” recites the relevant facts, and then sets forth an argument as to why the decision of the lower court should be changed. After the opposing party has filed a “respondent’s brief,” the appellant may serve an “appellant’s reply brief.” The record and briefs are then reviewed by the Court, and the appeal is placed on the Court’s calendar for oral argument or submission.  After the appeal is argued or submitted, it is decided by the Court.

The Role of appellate counsel

The law and the facts of a case have to be mastered, and then distilled to the point that they are easy to follow and understand, and yet sufficiently thorough to persuade the Court to rule in your favor. Appeals require skillful research and the ability to focus on issues intensely and for an extended period of time.

Common Grounds for Appeal

Where there has been a trial, an argument that is frequently made on appeal is that the instructions that the jury received from the trial judge were incorrect. In some cases, the verdict was adversely affected by the trial court’s refusal to allow the jury to consider certain relevant testimony and admissible evidence. Conversely, it may be argued that that the jury should not have been allowed to consider certain testimony and evidence, because it was not admissible, or relevant.

Many appeals arise from cases where there was not a trial, but only a “motion” to dismiss, or for “summary judgment.” The party against which summary judgment was granted may argue to the appellate court that the motion should have been denied because the papers that were submitted demonstrate that there are material issues of fact which require a trial. Conversely, if summary judgment was denied, the party who made the motion may argue to the appellate court that the motion should have been granted, because the papers that were submitted on the motion demonstrate that the material issues of fact are not in dispute, and that accordingly, a trial is not necessary.