How does an appeal work?

All cases begin in trial court. If the parties cannot settle a lawsuit, it will eventually end in a judgment, perhaps as a result of a motion by one of the parties, by the judge dismissing the case, or by a jury verdict. An appellate specialist usually gets involved when a judgment has been (or is about to be) entered. At this point, the losing party can appeal his or her case to a higher court (the winning party may also appeal if he or she is dissatisfied with the way the trial court resolved an issue) and ask the higher court to correct any errors made by the trial court.

Usually, appeals begin by filing a notice of appeal in the trial court. It is extremely important to identify the date that a notice of appeal must be filed. The time for filing varies from court to court, so it is usually a good idea to contact an appellate specialist as soon as it appears that a judgment has been or will be entered against you. In most circumstances, you lose your right to appeal if you do not file a timely notice of appeal, so identifying the proper date and filing the proper papers is vital.

Once the appeal has been filed, the appealing party-- known as the appellant--must identity the appellate record. The appellate record consists of the information from the trial that the appellant would like to present to the higher court. The other side—known variously as the appellee or the respondent—may also designate parts of the record for the appeal.

After the parties have designated the record for appeal, the clerk of the trial court and the court reporters will assemble that record. Once the record is complete, the appellant will file an opening brief—which is a written discussion of the facts and law and an argument explaining why the appellant believes the trial court made a mistake. The respondent or appellee will usually file a responding brief, and the appellant will file a closing, or reply brief.

After briefing is completed, the court of appeal will usually schedule oral argument. At oral argument, lawyers for each party have a chance to tell the court of appeal what they think was wrong (or right) about the trial proceedings. An oral argument is not like a trial. Oral arguments are typically limited to 10-30 minutes. Further, oral arguments are not always required and some courts may not allow them. There are no witnesses or juries. The judges of the court of appeal will ask questions of the lawyers but they will not take evidence.

Courts of appeal issue opinions after oral argument. The court of appeal may decide there was no error and affirm the judgment, or it may find some error and reverse. A reversal can mean that the lower court is directed to enter a new judgment in favor of the appellant, or the court of appeal may simply direct the trial court to hold a new trial or hearing.

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