What is an Appeal?


An appeal is a legal action that seeks the review of a decision of a lower court (e.g., the trial court) by a higher court (i.e., the appellate court). The "lower court" can also be an appellate court whose decision is being reviewed by a higher appellate court. For example, decisions of the highest appellate court in a State or from a United States Circuit Court of Appeals is reviewable by the Supreme Court of the United States.


As an appellate attorney, William Driscoll focuses his law practice on appellate litigation. He handles each appeal personally. Parties and attorneys needing assistance may contact William anytime.




The Basics of the Court System


A single judge presides in the trial court, with or without a jury. There, litigants air their side of the case through witness testimony and other evidence. Evidence is admitted or excluded by the judge, which affects what facts can be considered. The fact-finder (i.e., the jury, or if none, the judge) decides which facts to believe in part based on witness credibility. The law is then applied to the facts found by the fact-finder and an outcome is rendered.


A panel of judges presides in the appellate court. An appeal occurs when one or more parties are dissatisfied with what occurred in the trial court. An appellate court is much more streamlined than the trial court. The practice, procedure, and skills are specific to the appellate courts. The primary form of argument in the appellate courts is made in the form of briefs, which are formally written legal documents that are typically quite lengthy. The secondary form of argument is provided in person before a panel of judges. That presentation is called oral argument. The appellate court ultimately issues its decision based on the written briefs and oral arguments.


Appellate litigants who are dissatisfied with the initial decision of the appellate court can seek permission to have the case heard in a higher appellate court. In New Hampshire, there is only one State appellate court, the Supreme Court. Further appellate review would be to the United States Supreme Court. In Massachusetts there are two levels of State appellate courts. Decisions from the lower appellate court, the Appeals Court, can be heard by the Supreme Judicial Court. Decisions of the Supreme Judicial Court can be further appealed to the United States Supreme Court.




An Appeal is a Review, Not a Retrial


An appeal is a review of what already happened in the lower court (i.e., typically, in the trial court). Appellate proceedings are largely accomplished by paper filings (i.e., briefs). Barring exceptional circumstances, there is no opportunity to present new evidence on appeal. There are also no witnesses in the appellate court.


The only hearing is oral argument, which is a time restricted opportunity for each appellate attorney to argue their case while answering the questions of the appellate panel of judges. A "hot panel" is the norm, so attorneys must be prepared to answer questions with a direct reply and pivot back to their argument until the next question is posed or their allotted time expires.


Appellate courts rarely re-determine the facts decided in the trial court or second-guess matters within the discretion of the trial judge. The appellate court's review is for lower court error that affected the lower court's decision. This is known as "reversible error."




Standards of Appellate Review


Appellate courts provides lower court (i.e., trial or appellate court) deference, assuming the lower court was correct. The lens used by appellate courts in reviewing lower court proceedings is called "standards of review." The standards of review provide a spectrum for evaluating the degree of deference applied to each issue on appeal. There are many standards of review that may apply to an issue on appeal.


The ultimate degree of review permits the appellate court to give no deference to the lower court. That standard is called "de novo review," which is latin for review anew. This standard is usually reserved for pure questions of law. Under that standard, the appellate court can read, interpret, and apply the law as well as (if not better than) the lower court.


At the other end of the spectrum is the "abuse of discretion standard." Under that standard, the appellate court will uphold the lower court's decision on the issue at hand unless it is deemed entirely unreasonable.


The party or parties pursuing the appeal are called the Appellant(s). The Appellant has the burden to prove that they have met the standard of review for each issue presented for appeal. If successful, the lower court committed reversible error on that issue. Otherwise, that issue will be upheld on appeal. For this reason, few appeals are ultimately successful. A seasoned appellate lawyer, like William M. Driscoll, will determine the possible risks and rewards of appealing a lower court decision. He identifies the issue(s) that are appellate worthy and advises his clients accordingly.




The Mechanics of an Appeal


The appeal of a final judgment starts with the timely filing a "notice of appeal". The contents of a notice of appeal is dependent on the jurisdiction. In Massachusetts, the notice of appeal is a short document informing the trial court that a party is "appealing" the court's judgment. New Hampshire is very different. The party who initiates the appeal is called the Appellant. The party defending the judgment is called the Appellee. If multiple parties file notices of appeal then the action is regarded as a cross-appeal.


The Appellant is responsible for compiling the relevant documents, exhibits, and trial court transcripts. Together, these items are called the "record on appeal." The appellate court reviews the appellate record.


The appellate briefs are critical to the outcome of an appeal. An "appellate brief" is an often lengthy written document prepared according to the precise rules of the appellate court. Crafting a professional appellate brief is a highly specialized and time-consuming process. The rules and requirements for appellate briefs vary between jurisdictions. Appellate brief-writing is highly particularize in form and function, which is why appellate lawyers, like William M. Driscoll, focus their law practice on appellate litigation.


After all briefs are filed, the appellate court may schedule oral argument before a panel of appellate judges. If the case is not scheduled for oral argument, it will be "submitted on the written briefs" only and decided by the appointed panel of appellate judges. Oral argument is a fairly short, intense formal proceeding. It is an opportunity for each side to argue their case while answering the panel's questions. Priority must be on answering the panel's questions because that is typically why oral argument is scheduled in the first place. A seasoned appellate lawyer has honed his oral argument skills for optimum performance. After oral argument, the case is deemed "submitted."


After the case is submitted for decision, the appellate judges privately discuss, debate, and decide the outcome of the case by majority vote. The decision is announced in a written document called an "opinion," which is often lengthy. The opinion states the majority decision. If part of the majority wishes to speak separately, a "concurrence" is added to the opinion. There may also be a minority opinion, for which a separate "dissent" is added to the opinion.


A party who is unhappy with the appellate court's opinion can ask the appellate court to "rehear" the case due to perceived errors in the opinion. A party who is unhappy with the ultimate appellate court's opinion may seek "further appellate review" by requesting "certiorari" to the next higher appellate court. Certiorari is Latin for "to be informed." Certiorari is denied in most cases. But if granted, the appeals begins anew in the higher appellate court. The appellate court of last resort is the United States Supreme Court, which would end appellate recourse.




The Bottom Line


An appeal is a complex proceeding. The decision of whether to appeal should be made after consultation with an experienced appellate attorney. The decision to appeal, and the issue(s) to be appealed are complicated and should be decided with an experienced appellate attorney. William M. Driscoll focuses his law practice on appellate litigation.


William M. Driscoll handles all aspects of what you have just read. He advises attorneys on how best to prepare for an appeal before the case goes to trial. He advises parties finding themselves challenging or defending a judgment in the appellate court. The best time to prepare for appeal is as early in the process as possible, ideally before trial. Parties and attorneys seeking assistance with any aspect of an appeal or related matter are invited to contact William anytime.