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Appellate Practice


What happens if you are unhappy with a verdict or ruling from a trial court? Whether the decision was made by a judge or a jury, any party can appeal the case to a higher tribunal. Generally, if the case was initially heard in state court, it should be appealed to the state appellate court. The federal circuit courts of appeals hear cases appealed from the U.S. District Courts. Additionally, the Court of Appeals for the Federal Circuit can hear appeals from cases across the country, in specialized areas such as patent laws or cases decided by the Court of Federal Claims.

Appellate courts generally do not afford you a “new” trial and will not hear new evidence that wasn't presented to the trial court. Rather, courts of appeal review what transpired in the trial court and determine whether proper procedures were followed and the law was applied correctly. Appellate courts generally defer to the trial court or jury findings regarding factual issues, and only examine how the law was applied during the trial.

To initiate an appeal, the “appellant” – the party appealing – must file a notice of appeal in the trial court, and designate an appellate record consisting of materials from the trial court which the appellant wishes to present to the appellate court. The deadline to file a notice of appeal in state court varies, but is commonly 30 days in many jurisdictions, with some allowing 60 days. In federal cases, the notice of appeal must be filed within 30 days after the judgment is entered.

Appellate cases generally involve three legal briefs, all of which must contain citations to cases and statutory or other legal authorities. Briefs must also contain proper citations to the designated appellate record. First, the appellant files an opening brief with the court of appeals. This brief must explain the factual and procedural history of the case, in a neutral fashion, and then state how the trial court erred and why the appellate court should reverse the ruling. The “appellee” – sometimes called the “respondent” – then files a responsive brief with the appellate court. Like the opening brief, this response should also neutrally explain the factual and procedural history, followed by argument that the trial court was correct and the ruling should not be reversed. Finally, the appellant then has an opportunity to file a reply brief. In the reply, the appellant can argue against the claims made in the appellee's responsive brief, but is not permitted to introduce any new legal arguments. The reply must only address statements made in the responsive brief.

Typically, after the briefs are filed, a panel of appellate court judges will hear oral argument, which can take place anywhere from a few months to a year or more after the appeal is filed, depending on the court. However, some courts will decide cases based solely on the briefs, without hearing oral argument. The appellate panel will issue a written opinion stating their decision and the reasoning behind it. At the court's discretion, the opinion may be published in the official reports and become binding authority over future cases. The timing of this written opinion varies considerably among different courts, but is generally a period of several months.

If a party is dissatisfied with an appellate court ruling, an appeal may be initiated in a higher court, such as a state supreme court or the U.S. Supreme Court. The appropriate court depends on a number of factors, including which court made the initial ruling and whether the subject matter involves a federal question. Generally, the supreme courts are not required to hear every case and may choose which matters they will decide. These courts typically hear cases where lower courts have made conflicting decisions regarding the same issue, in order to provide uniformity in the law.

What is the Right to an Appeal?

An appeal, in legal terms, refers to challenging a previous legal decision. When someone makes an appeal, they are generally asking a higher legal power to review their case. A power that is higher than the court that initially made the decision. There are two aspects of a criminal conviction that allow for the right to appeal:

  • The conviction itself, as in whether or not you are found to be guilty of committing a crime; and
  • The sentence, as in your punishment for being found guilty of committing that crime.

The right to appeal is not necessarily a given; the circumstances in which a person even has the right to appeal a particular type of decision is determined by each state. However, it is generally accepted that if you have been convicted of a crime under criminal laws, either by a judge or jury, then you have a right to appeal that conviction. 

In some cases, a person may be convicted of a crime, and while they agree that they are guilty of committing a crime, they do not agree that they have been properly or fairly sentenced. So while the end result might seem fair and just, the U.S. legal system says it cannot be fair if the steps to the result were wrong or unfair. I these instances, defendants may have the right to an appeal.

What are the Grounds for an Appeal?

As previously mentioned, an appeal asks that a higher court change the trial court's decision. They do this based on a legal or procedural error. It is important to remember that grounds for an appeal must be based in law and not the facts of the case. 

The appeals court, or appellate courts, very rarely consider the facts of the case. They do not review all of the evidence, nor do they consider whether the defendant was not actually guilty.

There are several ways in which an appeal may be granted, leading to the conviction being overturned or dismissed. Some examples of these ways include:

  • Insufficient Evidence Against the Defendant: This means that the evidence presented at the trial does not meet the elements of the crime the defendant has been convicted of;
  • Newly Discovered Evidence: This occurs when evidence supporting a wrongful conviction is discovered. If the evidence was not reasonably available to the defendant during the trial, an appeal may be granted. The constitution requires that the defendant receive a fair trial; thus, finding out that the prosecutor withheld evidence that would have been fundamental in the outcome may grant the defendant a new trial entirely;
  • Improper Instruction: An appeal may be made if it is discovered that the jurors in the case were given improper instructions. Jurors are given very specific instructions they must strictly follow when reaching a verdict. Improper instructions may also result in a new trial for the defendant;
  • Juror Misconduct: Another way in which the jury influences the right to an appeal includes juror misconduct. Examples of juror misconduct include communicating with a witness, using drugs or alcohol during trial and deliberations, or even performing improper experiments in order to determine guilt (like in “12 Angry Men”);
  • Illegal Evidence: Evidence cannot be used if it was obtained illegally, like through an invalid search warrant. The prosecution is not allowed to use illegally obtained evidence at the trial;
  • Inadequate Representation for the Defendant: This occurs when the attorney representing the defendant did a poor job, or misrepresented the defendant in some way. It needs to be proven that the trial's outcome would have been different if not for the attorney's actions, or lack of actions; or
  • Abuse of Discretion: This refers to a judge improperly using their power in either a jury trial, or a bench trial. If this improper use of power is found to have influenced or changed the outcome of the trial, an appeal may be granted.

Errors that are considered to be harmless, or errors that did not influence the outcome of the trial, will not likely result in the conviction being reversed or dismissed.

How Does an Appeal Work, and Does My Plea at Trial Affect My Right to an Appeal?

When you are convicted of a crime in a state trial court, and seek to appeal their decision, you will need to ask the next highest court to review the decision. In most states, this is called the “appellate court.” The appellate court only reviews the record and the evidence presented to the court in which the defendant was convicted, in order to see if there are grounds to grant the appeal. 

Appeals can be granted whole, in part, or completely denied. If the appeal is granted, the appellate court may completely dismiss the charges. Alternatively, the appellate court may order a new trial altogether. If the appellate court completely denies the appeal, then the defendant may then appeal the case to the state's highest court. The state's highest court does not have to review the appeal; it is completely discretionary. 

The amount of time the appeals process takes depends on several factors. First, your attorney must fully prepare the record, as they are appealing the legal errors that arose during your original trial. This process could take anywhere from four months or longer. Then, briefing could take another four months or longer, with the appeals court taking another six months or longer in order to decide whether there will be an oral argument in the case. 

The court generally makes their decision within two to six months after an oral argument; however, there is no set deadline so it can easily be longer than that. The appeals process can be very lengthy but may be worth it if the defendant truly believes they are owed an appeal. 

Your plea at trial does not necessarily affect your right to an appeal. Trials are appealable, regardless of a person's plea at trial. Appeals are based on errors of law, and the preservation of those errors. Further, as previously mentioned, some defendants do not disagree that they are guilty; rather, they disagree with the sentencing, believing that the sentencing was improper or unfair. 

If you have been convicted and sentenced for a crime as a result of your own guilty plea, then your right to appeal is limited. In some cases, it may be possible to submit a conditional plea bargain or a plea of “no contest”, which would allow you to appeal certain pre-trial issues. 

An example is where the trial court concluded that evidence cannot be used, even if the defendant believes it proves their innocence. Here, a conditional plea entered may allow the defendant to appeal the ruling regarding the evidence.

What Else Can I Do Aside from Filing an Appeal?

An alternative to filing an appeal is a post-trial motion filed with the court in which the conviction occurred. This basically asks the court to correct the error the defendant believes occurred, rather than have the appellate court reverse the decision on appeal. An advantage of a post-trial motion is that trial courts prefer to fix their own errors, rather than have the appellate court order a whole new trial because of those errors.

Filing a post-trial motion does come with some risk. There is a chance that the trial court could make more points against your position when addressing the motion. These points could be used against you during an appeal. However, if they help point out the trial court's error, it could work in your favor.

Do I Need an Attorney to File an Appeal?

If you want to appeal your criminal conviction, then a skilled and knowledgeable criminal defense attorney can advise you of your legal defenses. They can also inform you of your right to an appeal, as well as represent you in court as needed. If you are facing a criminal conviction and need a new attorney for the purpose of appeal, you may be entitled by the state to hire a new attorney.