How does an appeal proceed? What happens during an appeal?

If either the plaintiff or defendant in a civil trial disagrees with the decisions made by the judge or jury, including the final verdict, the party may decide to appeal his or her case.  Appeals in most U.S. states and in the federal courts follow specific rules, usually called the rules of appellate procedure.  Like the rules of civil or trial procedure, these rules dictate where, when, why, how, and by whom an appeal must be made.

The appeals process usually begins when one of the parties to a case files a request for appeal with the appropriate appeals court.  Cases in state trial court are usually appealed to the state’s intermediate appellate court, while cases in U.S. District Courts are usually appealed to the U.S. Court of Appeals that covers the “circuit,” or geographic area, in which the District Court sits.  For instance, cases heard in the U.S. District Court for the Southern District of New York may be appealed to the U.S. Court of Appeals for the Second Circuit, which includes the entire state of New York as well as Vermont and Connecticut.

The party that files the request for appeal is known as the petitioner, while the opposing party is known as the respondent. In most appeals cases, the petitioner is asking the appeals court to change the decision of the trial court, while the respondent is asking the appeals court to leave the trial court’s decision as it is.  In a handful of cases, however, both the petitioner and the respondent want a change in the trial court’s decision, though they rarely want the same change.  For instance, a defendant at trial may file an appeal arguing that the damages awarded are too high, while the plaintiff may file an appeal arguing that the same damages amount is too low.  Most often, however, the petitioner is the one asking for a change, while the respondent is the one asking for the decision to stay the same.

Once the parties are given permission to bring their case to the appeals court, the petitioner will file an appellate brief, which is a written document explaining the petitioner’s arguments and the law that supports her position.  The respondent is given a chance to file a response brief or a “response,” usually within a limited number of days after receiving the petitioner’s appellate brief.  The response explains the respondent’s arguments and position, as well as the law that supports the respondent’s side.  The petitioner may or may not be allowed to file a reply that addresses any new arguments the respondent made.  Creating appellate briefs is a complex process that requires a good understanding of the law involved in the case, so most parties to an appeal work with an attorney when appealing a case.

While the briefs are being written or after they are filed, the appeals court will set a date for a hearing.  During the hearing, the petitioner and respondent, and/or their attorneys, appear before the appeals court.  Each side makes an oral argument, which includes both explaining that party’s side of the case and answering any questions the appeals court has.  Once the appeals court has had a hearing, the judges consider the case, then issue a written opinion that explains their position and the law and reasoning they used to reach their decision.  If one of the judges does not agree with the majority’s decision, he or she may write a dissenting opinion.  Dissenting opinions do not change the outcome in the case in which they are written, but they may provide guidance for others who have similar cases before the court in the future.

Most appeals are heard before a “panel” consisting of only a few of the judges that sit on the appeals court.  A decision made by a panel, however, may be appealed to the entire court, sitting en banc.  It may also be appealed to a higher court, such as the state’s supreme court or the U.S. Supreme Court (in federal cases).  While the first appeal is often an appeal of right, or guaranteed by law, later appeals are usually discretionary, or granted by the court being appealed to.  In the U.S. Supreme Court, the document used to ask for the Court to hear a case is known as a writ of certiorari or “cert.”  When the U.S. Supreme Court gives permission to parties to bring a case to their court, it is known as “granting cert.”

An appeals court will most often either affirm or reverse and remand the decision of the trial court.  If the appeals court affirms, the decision stands “as is.”  If it reverses, the case goes back to the last court that had it in order to be reevaluated according to the explanation of how the law should apply that is included in the court’s written opinion.

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