What is an Appeal?


An appeal is a legal action seeking the review of a court decision or judgment by a higher court, an appellate court. Massachusetts has a two-tier appellate court, the "lower" Appeals Court and the state court of last resort, the Supreme Judicial Court (SJC). The court of last resort is the Supreme Court of the United States.


Attorney William (Bill) Driscoll handles each appeal personally. His research, writing, and presentation skills are time tested and based upon the same drive, detailed analysis, and plain-English communication style that earned him Federal Government distinction during his pre-law career. A description and description of each of a number of Attorney Driscoll's appellate cases are available for your viewing. You are welcome to contact Attorney Driscoll to learn more.




The Basics of Our Court System


A single judge presides over a trial court, with or without a jury. The work performed in the trial court is primarily to establish the facts of the case. During trial, each side presents their perspective of the case through witness testimony and other evidence. Evidence is admitted or excluded by the judge, which affects what facts are considered. At the end of the hearing or trial, the fact-finder (i.e., the jury, or if none, the judge) decides which facts to believe, applies the law to the facts found, and renders a decision.


A panel of judges preside in the appellate court. The appellate court reviews the work of the lower court (e.g., the trial court). The practice, procedure, and skills required in the appellate court are much more precise and unforgiving than in the trial court. The primary way to present an appeal is by a formal written legal documents called a "brief," which is detailed and concise but lengthy. The secondary presentation of an appeal is via oral argument before a panel of appellate judges.


The appellate court ultimately renders a decision in the case on and issue-by-issue basis. Appellate litigants who are dissatisfied with the appellate court's decision can seek permission to have the case reheard or seek permission for the next highest appellate court for further appellate review.




An Appeal is a Review, Not a Retrial


An appeal is a review of what occurred in the next lowest court, typically the trial court. Barring exceptional circumstances, there is no opportunity to present new evidence on appeal. The exception is the appeal of a new trial motion concurrent with a direct appeal from conviction. There is no witness testimony or other new evidence presented in the appellate court.




The Standards of Appellate Review


The lens by which an appellate court reviews each issues presented on appeal is called a "standard of review." There are various standards of review available. The applicable standard of review for a particular issue is known by an experienced appellate lawyer, such as Attorney Driscoll. Together, the standards of appellate review provide a spectrum for evaluating any issue that can arise in an appeal.


At one end of the spectrum is de novo review, where the appellate court reviews the issue with no deference to the lower court. This standard of review is used for issues of law because the appellate court is in as good a position to apply the law as the lower court.


At the other end of the spectrum is the abuse of discretion standard. This standard of review provides deference to the lower court who was in a better position to decide the issue, but only if the lower court's discretionary decision is not deemed entirely unreasonable.


Whomever is asserting error on appeal has the burden on appeal to prove that they have met the standard of review for each issue presented for appeal. If successful, the lower court's action was erroneous. The next step is to determine whether that error impermissibly prejudiced the outcome on the issue presented.


A seasoned appellate lawyer, like Attorney Driscoll, will determine the possible risks and rewards of appealing a lower court decision on an issue-by-issue basis based on "appellate worthiness." He will then advise his clients accordingly.




The Mechanics of an Appeal


The appeal of a conviction begins with the timely filing a "notice of appeal." The appealing party is then responsible for compiling the relevant documents, exhibits, and trial court transcripts relevant to the issues to be raised on appeal. Together, these items compose the "record" of the case being appealed.


The written appellate briefs are critical to the outcome of an appeal. Crafting an effective appellate brief is a highly specialized and time-consuming task.


Oral argument is typically the only appellate hearing. It is a short, but intense formal hearing where the panel of appellate judges grill each appellate lawyer on various aspects of the case deemed meaningful to each justice's decision. Each side must argue their case while the panel poses probing questions.


A seasoned appellate lawyer, like Attorney Driscoll, is prepared to answer the aspects of the case likely to be probed by the panel and has honed his oral argument skills for optimum performance. After oral argument, the case is deemed "submitted" for decision.


Once the case has been submitted for decision, the appellate panel meets privately to discuss, debate, and decide each appellate issue presented. The majority's decision is announced in a written decision. If part of the majority wishes to speak separately, a concurrence opinion is added to the decision. There can also be dissenting opinion added to the decision.


Whomever is dissatisfied with the appellate court's decision can seek reconsideration from the appellate court. The dissatisfied party can also seek further appellate review in the next highest appellate court. Further appellate review is typically denied. If granted, the appeal begins anew in the next higher appellate court. This cycle can continue to the court of last resort, the Supreme Court of the United States by means of a petition for certiorari.




The Bottom Line


Attorney Driscoll handles all aspects of what you have just read. Parties and attorneys seeking assistance with any aspect of an appeal or related matter are invited to contact Attorney Driscoll.