Lawyer Listings Add, Update, or Remove Listings

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.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

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

In the federal system the right of appeal from a final decision is 28 U.S.C. § 1291, interlocutory appeals are § 1292 (injunctions at (a)(1), certified questions at (b)), and the collateral-order doctrine is Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), narrowed in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009). The Federal Rules of Appellate Procedure govern the notice of appeal (Rule 3), its timing (Rule 4, with the jurisdictional character confirmed in Bowles v. Russell, 551 U.S. 205 (2007)), the record (Rules 10-11), briefs (Rules 28-32), oral argument (Rule 34) and rehearing (Rules 35, 40); stays pending appeal are Federal Rule of Civil Procedure 62. Standards of review are stated in Federal Rule of Civil Procedure 52(a)(6) (clearly erroneous findings), Anderson v. City of Bessemer City, 470 U.S. 564 (1985), Pierce v. Underwood, 487 U.S. 552 (1988), and Highmark Inc. v. Allcare Health Management System, Inc., 572 U.S. 559 (2014); harmless error is 28 U.S.C. § 2111. Supreme Court review is 28 U.S.C. § 1254 and § 1257. Each state's appellate rules govern its own courts, and the deadline for a notice of appeal - which differs between systems and between civil and criminal cases - is not stated here.

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.

Find a lawyer for this in your state

Choose your state. Each link opens the directory page for the city in that state with the most currently published law firms in this practice area; a +n beside the city is how many other cities in the state also have one. The list is generated when this page loads, so a state whose listings have lapsed drops out rather than becoming a dead link.

« All glossary terms

Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.