An appeal is the process of making a formal request to a higher (appellate) court to reverse a lower court’s decision after the lower court has made a final judgment or ruling. Often, the losing party files an appeal with the higher court; this begins the appellate review process. An appellate court reviews the facts as presented in the trial, and no other evidence is considered in making an appellate decision. The main purpose of an appeal is to review the legal decisions made at the trial court level.

An appellant is the party to a lawsuit who is seeking an appeal from a lower court decision. The appellant is typically the party who lost at the trial court level. The appellant must file a notice of appeal and offer a legal brief to the appellate court, putting forth its legal arguments and its legal basis for the appeal.

An appellee is the party who wins the judgment at the trial court level. The appellee must respond to the appellant’s legal arguments by filing a legal brief and appear in court, if necessary, to argue to the appellate court why the lower court decision should not be disturbed.

Harmless error
Harmless error is an error allegedly made by a lower court judge that an appellate court finds insufficient to alter or amend the lower court’s decision. The error is deemed “harmless” because reconsideration of the alleged error would have no bearing on the outcome of the lower court’s decision. An example of a harmless error would be a technical error made by the lower court that, under the applicable law, was improperly decided; yet, the remaining evidence substantially supports the original judgment.

An injunction is an order issued by the court which orders a party to do something or prohibits the party from doing something. An injunction may be proper when a party may be harmed by another party’s threatened actions.

Interlocutory appeal
An interlocutory appeal is a type of appeal that seeks the review of a temporary order (such as an injunction) that is related to a pending lawsuit. An interlocutory appeal is filed and heard while the underlying action is still proceeding at the trial court level.

A mandamus action is an order issued by a court that orders a governmental body or public agency to perform an act required by law. Often, a mandamus action is sought when a governmental body or public agency fails or refuses to act under an applicable law.

Writ of certiorari
A writ of certiorari is a type of judicial order from an upper level court to a lower court (for example, the U.S. Supreme Court to a U.S. Court of Appeal) to send the court record and related documents of a particular case to the higher court for its review. A writ of certiorari is typically associated with the review of lower court decisions by the U.S. Supreme Court or state supreme courts. The appealing party must file a writ of certiorari (also sometimes referred to in short hand as “cert”) to the higher court, which may agree to review the lower court's decision ("granting certiorari") or may refuse to review the lower court's decision ("denying certiorari").

This subchapter focuses on the general principles and procedures involved with the appeals process, which is referred to as the “appellate process”. The rules regarding the appeals process are governed by the rules and procedures found in the Federal Rules of Civil Procedure and another set of laws called the Federal Rules of Appellate Procedure. The rest of this subchapter will provide background on the appellate process, including the general principles governing an appeal, some distinctions between the appellate procedure and the typical trial process, and other factors to consider when handling an appeal.

The previous chapters have focused on the rules and procedures governing the litigating of a lawsuit, including the filing of the complaint, the filing of motions and conducting discovery. Traditionally, a lawsuit is filed at the trial court level, where a judge or jury hears facts and legal arguments presented by all parties involved. At the conclusion of the trial, the judge or jury comes to some type of conclusion, determining the liability of the parties and may award monetary damages or equitable relief (an injunction, ordering a party to do something). 

Appeals become relevant when a party believes that a trial court decision does not reflect the proper application of the law to the facts of a case. Usually, it is the party who is adversely affected by the trial court’s decision that has the need and/or desire to appeal. Rather than leaving a party without any legal recourse against an error that may have been made by the trial court, the law permits an aggrieved party to seek redress by allowing the party to appeal the trial court’s decision. A court that is distinct from the trial court (that made the initial decision) reviews the trial court’s decision and determines whether or not it rendered an improper decision on a particular issue. For instance, in the New York court system, the state Supreme Court’s (the equivalent of a trial court) decisions are generally appealed to the Appellate Division. Some statutes specify the particular court in which the appeal must be filed. Under the federal Clean Water Act, the statute specifies the appropriate appellate court to which a party can appeal a decision. Therefore, it is important to determine the applicable jurisdiction’s rules and any other statutory provision that may require the filing of an appeal in a specific court.

The remainder of this subchapter will explore the concepts and procedures involved in bringing an appeal, including the requirement for a final lower court decision, the basic procedural steps in commencing an appeal, the scope of facts that may be reviewed by an appellate court, and the types of review available in the judicial system.

Finality of a court decision

For an appeal to be brought, a trial court (the "lower" court) must issue a final decision. The judiciary has established, through federal case law, that an appellate court may only review the final decisions of a lower court on a case (with limited exceptions that will be discussed below). Finality is established when a trial court has made a determination as to whether any of the parties are liable based on the cause of action pursued in the lawsuit. For instance, if a party brings a lawsuit regarding another party’s alleged breach of contract, the trial court would determine whether that party had, in fact breached the contract or not. The trial court would then determine what relief, if any, the plaintiff is entitled to. Once that determination is made, the judgment would be considered final and a party not satisfied with the judgment can appeal. See Cunningham v. Hamilton County, 119 S. Ct. 1915 (1999).

There are some exceptions to the requirement for a final decision. The courts recognize the review of some interlocutory orders. An interlocutory order is an order issued by a lower court that does not dispose of the legal claims at the heart of the lawsuit. Examples of interlocutory orders are temporary injunctions and receiverships. An injunction is an order from the court for the party to cease doing something or requiring a party to do something. An example of an injunction would be a court order to cease selling a product while ownership of a patent regarding that product is being settled. A receivership is an appointment by the court of an entity (called the receiver) to take control of profits, income, or property while its ownership is being determined in court. A court may appoint a receivership for real property to manage and pay real property taxes and maintain the property's condition while the court determines ownership rights relating to the property, or to oversee the sale of the property and to distribute the profits to the appropriate entities. Under certain circumstances, procedural rules allow a party to immediately appeal the outcome of these interlocutory orders prior to the trial court’s issuance of a final decision. An appeal of an interlocutory order is known as an interlocutory appeal.

Issues available for appellate review

For an appeal to proceed, four factors must be present. First, the error which is being appealed must appear on the trial record. This factor requires that the trial court’s transcript (which contains the arguments, examination of witnesses, objections to evidence, and other in-court transactions) must contain the alleged error. If the appeal concerns the trial court judge's permitting of the admission of improperly seized evidence, the trial record must show that the evidence in question was, in fact, admitted into evidence. If the trial record does not contain the error, the appeal will be dismissed.

The second factor requires that the aggrieved party who is petitioning for the appeal must have objected to the allegedly errant ruling during the trial. In other words, at the time of the alleged improper ruling (such as the admission of improperly seized evidence), the party bringing the appeal must have made a timely objection to the admission. The objection gives the trial court and the parties to the litigation notice that the objecting party has taken issue with the problem. In addition, it allows the trial court to reconsider its ruling regarding the legal issue and to reverse it if it deems necessary. This factor facilitates efficiency in the judicial system and the final resolution of legal issues that may not need to proceed through the appellate process.

Third, the error must not be considered harmless under legal analysis. Harmless error is a legal term that means that the error did not have a significant impact on the trial court’s (usually the jury's) verdict. In the admission of improper evidence example, the trial court’s ruling permitting the improper admission of evidence may have affected the outcome of the trial, and the trial may have turned out differently but for the errant ruling. Thus, the ruling can be appealed. However, if the appellate court determines that the evidence in the case is so strong that the outcome would have been the same regardless of the admission of the improper evidence, the appellate court can decline to reverse the lower court's verdict, even if the trial court's ruling on the admission of a particular piece of evidence was erroneous.

Fourth, the party bringing the appeal must properly raise the alleged trial court error in its appellate brief. See J.F. White Contracting Co. v. New England Tank Industries of New Hampshire, Inc., 393 F.2d 449 (1st Cir. 1968); Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241 (1939).

Scope of Review of Facts

The appeals process limits the scope of an appellate court’s review of the facts involved in a lower court case. When a higher court is reviewing a lower court’s decision, it looks to the facts and evidence presented to the lower court as they are preserved in the trial court record. The trial record is a record of the transactions that occurred during the trial, such as the submission of evidence, the testimony of witnesses presented by the plaintiff and defendant, any rulings made by the presiding judge regarding procedure, and any objections noted by the counsel of any party. Since the trial record preserves the substance of the trial, it also reflects the information on which the trial court judge or jury based its decision. Therefore, the appellate court reviewing the lower decision must base its review of the lower court’s decision on the substance of the trial record. As a result, the parties may not introduce new facts or expand the scope of review to any greater extent than that found in the trial record.

This review based on the trial record is limited for several reasons. The trial court judge (and jury, where applicable) is in the best position to judge the facts of the case as they hear and see the witnesses and evidence presented at trial. They can judge the credibility of a witness based on "body language" and other subtle things that the appellate judges, who do not watch the trial, do not have access to. As a result, the reviewing judges often defer to the lower court’s rulings and observations. In addition, the appellate court is focusing on a particular section of the trial record and may review some legal findings out of context. The trial court judge has the advantage of observing the trial as a whole, from start to finish. Seeing the trial as a sequence of small rulings in the context of the whole may affect the judgment that a court will render. The law understands that there may be several considerations that go into the trial judge’s decision making. The appellate courts, therefore, offer deference to the lower court’s rulings on legal issues for these reasons. See Orvis v. Higgins, 180 F.2d 537 (2d Cir. 1950). See also Roland Machinery Co., v. Dresser Industries, Inc., 749 F.2d 380 (7th Cir. 1984).

Process of appealing a decision

As with the trial process, there are some important time constraints in the appeals process. Rules 3 and 4 of the Federal Rules of Appellate Procedure require that an appeal begin thirty (30) days from the time of the district court’s entry of its final decision (also known as "entry of its final judgment"). Specifically, the party seeking the appeal must file its notice of appeal with the district court within thirty days of entry of judgment. In cases where the United States government is the party to the lawsuit, this time period is extended to sixty (60) days. This time is strictly enforced, and may not be altered by an agreement among the parties. See United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227 (1958). This strict filing deadline may be modified if a party to the original lawsuit makes a renewed motion for a new trial, or a motion for judgment as a matter of law, or if the judgment is amended within ten days of the judgment. In these situations, the thirty day period is extinguished and a new thirty day period begins once a new entry of the order is made by the court.

After a notice of appeal is filed, the appellate process is formally commenced. During this process, the parties may file motions similar to those filed during trial as permitted under the Federal Rules of Appellate Procedure. All parties file an appellate brief. An appellate brief presents the persuasive legal arguments that best support the filing party’s position, including pertinent discussion of laws and court cases. All appellate briefs are filed with the presiding court overseeing the appeals process, as well as with opposing counsel.

When the highest state court or a federal court of appeals has rendered a final decision, but a party seeks further appellate review, it can file a motion in the Supreme Court, asking the Court for a writ of certiorari. The U.S. Supreme Court may review the case under limited circumstances. The U.S. Supreme Court may only review a decision rendered by the highest state court when that decision depends on federal law. For example, the U.S. Supreme Court may review state cases where a state statute upon which the state court rendered its decision may conflict with the federal Constitution or a treaty between the United States and other foreign governments or with a federal statute. See 28 U.S.C. §1257. The Supreme Court may not review and overrule state court decisions regarding state law.

After the appellate court reviews the appellate briefs and arguments made by the parties, it will render its decision as to whether the lower court committed an error on the particular legal issue brought up for review. The appellate court may agree with the lower court’s decision. In this case, the lower court’s judgment will be enforced or “affirmed”. On the other hand, if the appellate court finds that the lower court made an error in rendering its judgment, the appellate court will specify the error committed and remand, or send back, the case to the lower court. The appellate court may specify, in its decision, the error committed by the lower court and specify instructions as to the manner in which the lower court should proceed. Once the decision is made, the trial record and higher court decision is sent back to the original lower court with instructions to “correct” its error and impart the proper judgment on the parties.

One complication that exists regarding appellate procedure is that there may be several different levels of appellate courts. For instance, at the federal level, there are two levels of appellate courts: the U.S. Circuit Courts of Appeals, which hear appeals from the trial courts, and the U.S. Supreme Court, which hears appeals from the Circuit courts (though, there are rare circumstances where the U.S. Supreme Court may function as a trial court, such as controversies between two state governments). The equivalent of the trial courts in the federal system are the U.S. District Courts. For instance, in New York there is the U.S. District Court for the Southern District of New York, which sits in Manhattan in New York City, New York. There are corresponding U.S. District courts for the Eastern District, Western District and Northern District, which cover the entire state of New York. If a party wishes to appeal a decision rendered by the Southern District of New York, the next level of courts to hear the case would be the U.S. Court of Appeals, more specifically the Second Circuit Court of Appeals. If further appellate review was sought, the party would petition the U.S. Supreme Court for review by applying for writ of certiorari, a process discussed earlier.

The state court systems vary by state. Each state may have either one or two tiers of appellate courts. For instance, in New York, the trial courts are known as the Supreme Courts of New York. If a decision is appealed from the Supreme Court system, it typically proceeds to the intermediate leveled courts, known as the Appellate Division. If further appellate review is sought, the case proceeds to the highest court in New York, known as the Court of Appeals. It should be noted that in the other 49 states in the Union, the highest court in the state is known as the state Supreme Court.

Types of Review by Appellate Courts

There are two types of review offered by the appellate courts. The first type of review is known as “review as of right”. This type of review occurs when a judgment is rendered by a trial court, but then may be appealed to a higher level court by either party, as a matter of right. If a party brought a lawsuit in a trial court, but the trial court rendered an improper judgment, it would be unfair and unjust to leave that party without any recourse to rectify the error. Therefore, the party is permitted to seek its appeal in an appellate court of the proper jurisdiction to rectify the error. An example of a review as of right is that every criminal defendant who gets convicted of a crime has an automatic right to appeal the conviction to the designated appellate court for that jurisdiction.

In the case of certain courts, such as the U.S. Supreme Court, the court has the discretion as to whether to review a lower court decision. This type of review is known as “discretionary review”. In legal terminology, this request for permission for review is known as a petition for a writ of certiorari. This procedure is always required for cases heard in the U.S. Supreme Court that originated in the lower federal courts and in the state courts. Typically, cases arrive at the U.S. Court of Appeals from a federal district court. A case heard by the highest court in a state (such as the California Supreme Court) may also be reviewed in the U.S. Supreme Court.

When a case has been heard by the judges in a U.S. Circuit Court of Appeals, and a party seeks further appellate action, that party must file a petition for a writ of certiorari in the Supreme Court, which contains the legal arguments and bases for the appeal. The U.S. Supreme Court may grant such a petition in a civil or criminal case at any time after the Court of Appeals has rendered a judgment. When the U.S. Supreme Court grants the writ of certiorari, it agrees to review the case and will render a judgment that either upholds the lower appellate court’s decision (“affirming” the judgment) or rejecting the lower court decision and remanding the case back down to the lower court with instructions to take whatever steps are necessary to rectify the situation.

It should be noted that when the Supreme Court denies certiorari, that does not necessarily mean that the Court agrees with or supports the lower court's decision. The Supreme Court only has time to hear about one out of every fifty cases for which a petition for certiorari has been filed. Because of this constraint, the Court will carefully choose which cases it hears, based on factors such as the importance of the issues involved in the case or the fact that lower courts have interpreted the same law in different ways (thus requiring the Supreme Court to settle the dispute). The Court may reject a case for a variety of reasons that have nothing to do with the merits of the lower court decision. For example, the Supreme Court may refuse to hear a case because the issues involved in the case are not important enough to merit Supreme Court review, because the Court has recently decided a similar case, or even simply because the court does not think that it can come to a clear decision on the issue. Thus, the fact that the Supreme Court (or any state Supreme Court) denies certiorari should never be taken as a sign that the Court condones or agrees with the lower court's decision.

In addition, the U.S. Supreme Court may receive a petition for “certification” from the U.S. Court of Appeals. This occurs when the Court of Appeals asks the Supreme Court for clarification or instruction on a particular issue of law in a criminal or civil case. In this situation, the U.S. Supreme Court may give an instruction or it may decide the case. See 28 U.S.C. §§1253, 1254.

See also Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977); Dick v. New York Life Ins. Co., 359 U.S. 437 (1959).


See Also: