Most decisions of a state or federal trial court (or an agency) are subject to review by an appeals court, including decisions regarding almost all types of civil cases. Whether the appeal concerns a judge's order or a final judgment entered by a jury, an appeals court reviews what happened in proceedings below for any errors of law. If the court finds an error that contributed to the trial court's decision, the appeals court will reverse that decision. The lawyers for the parties submit briefs to the court and may be granted oral argument. Once an appeals court has made its decision, the opportunity for further appeals is limited. The number of parties filing appeals has risen substantially in the last few decades, causing the state and federal court systems to implement changes in an effort to keep up.
Trials vs. Appeals
A trial and an appeal have a few similarities, but also many important differences. At trial, the parties present their cases, calling witnesses for testimony and presenting other pieces of evidence, such as documents, photographs, reports, surveys, diaries, blueprints, etc. The jury weighs this evidence and determines the facts of the case, that is, what they believe actually happened. A jury is therefore sometimes referred to as the finder of fact. The judge controls the activities in the courtroom and makes all the legal decisions, such as ruling on motions and on objections raised by the attorneys. The judge is often called the finder of law. If the parties have chosen a bench trial, rather than a jury trial, the judge will make both findings of fact and findings of law.
An appeal is a review of the trial court's application of the law. There is no jury in an appeal, nor do the lawyers present witnesses or, typically, other forms of evidence. The court will accept the facts as they were revealed in the trial court, unless a factual finding is clearly against the weight of the evidence.
Another difference between a trial and an appeal is the number of judges involved. A single judge presides over a trial. An appeal, however, is heard by several judges at once. How many depends on the jurisdiction. At the initial appeals court level, courts may have from three to a few dozen judges. Yet on the larger courts, the full number of judges seldom hear claims together. Instead, appeals are typically heard by panels, often comprised of three judges. In rare instances, the full court may decide to grant a motion for rehearing "en banc," in which event all the judges on the appeals court hear the case together and issue a new decision. Supreme courts, at the state and federal level, have from five to nine judges, referred to as justices.
The main form of persuasion on appeal is the written appellate brief, filed by counsel for each party. With this brief, the party that lost in the trial court will argue that the trial judge incorrectly applied the law. The party that won below will argue that the trial court's decision was correct. Both parties will support their positions with reference to applicable case law and statutes. An appeal is a more scholarly proceeding than a trial. Whereas the litigator must be an active strategist in the courtroom, calling witnesses, cross-examining, and making motions or objections, the appellate lawyer builds his or her case in the brief, before the appeal is heard. Appeals often include a short period for oral argument, but the judges often consume this period with questions for the attorney, prompted by the briefs.
The "Record" on Appeal
Appeals court decisions turn on the record, which documents what happened in the trial court. The record contains the pleadings (plaintiff's complaint and defendant's answer), pre-trial motions, a transcript of what occurred during trial, the exhibits put into evidence, post-trial motions, and any discussion with the judge that did not take place "off the record." The success of an appeal therefore depends on what occurred at trial. If an attorney failed to get critical, available evidence into the record, or to object to something prejudicial, the opportunity to do so is lost.
After the Appeals Court Decision
The party that loses in a state or federal appeals court may appeal to the state supreme court, or the U.S. Supreme Court. (Most states call their highest court "supreme court," though Maryland and New York call theirs the Court of Appeals.) Review in these courts, however, is discretionary with the court. Because these courts receive many more requests for review than they can handle, they typically grant review only to cases involving unsettled questions of law. Also, the U.S. Supreme Court can only review cases that raise some federal or constitutional issue; cases that concern state law exclusively are beyond its jurisdiction. At this point, the parties have already had the case reviewed once, reducing their tendency to see the decisions as biased or contrary to law.