While most people do their best to stay out of court, lawsuits happen. If you spend enough time in the business world, you’re likely to gain some first-hand experience with the litigation process. Relatively few people, however, have had any direct experience with an appeal. Only a small fraction of lawsuits will reach the appeal stage, but when they do, the stakes can be high. When a party loses at the trial court level, it can file an appeal and ask an appellate court to reverse or vacate the original trial court judgment. If successful, this can turn the tables on months or years of hard-fought litigation.
The appellate process differs greatly from trial court litigation. Whether you’re an appellant (the party challenging an adverse trial court judgment), an appellee (the party defending a favorable trial court judgment), or simply a party to litigation that might eventually involve an appeal, you should understand some of the different dynamics at play.
Standard of Review Is Everything
During the course of a lawsuit, a trial court resolves all sorts of issues for the first time: it decides whether the plaintiff has stated a legally adequate claim, what evidence each side is entitled to uncover, what evidence is admissible, whether each side’s claims and defenses are supported by evidence, how to conduct a trial, and so on. Every step of the way, the trial court takes into account all relevant circumstances and does its best to come up with the right answer to each of these questions.
In an appeal, an appellate court does not simply double-check the trial court’s work or ask whether its rulings were correct. Rather, appellate courts apply different standards of review to different issues. “Standard of review” describes the threshold at which an appellate court will intervene and reverse a trial court’s decision. Which standard of review an appellate court will apply depends on the question at hand. Some rulings, like those involving statutory interpretation and other legal questions, are reviewed “de novo.” “De novo” is a Latin phrase meaning “from the beginning” or “anew,” and it means the appellate court reviews a question with no deference to the trial court. If the appellate court disagrees with the trial court’s resolution of an issue, however slightly, it will step in and change the ruling accordingly. De novo review is the best-case scenario for appellants because it means a fresh start – a second chance to make their case to a different decision-maker.
However, most trial court rulings do not receive de novo review. In instances where the trial judge had the benefit of observing witnesses and proceedings first-hand, such as evidentiary rulings and jury instructions, appellate courts are hesitant to second-guess trial courts’ rulings, and they will apply a more deferential standard of review such as abuse of discretion, clear error, or substantial evidence review. Thus, even if an appellate court might have handled an issue differently in the first place, it will not reverse a trial court’s ruling unless the ruling is wrong enough under the applicable standard of review.
Sometimes it is difficult to determine what standard of review should apply to a given ruling, and parties may argue for more or less deferential standards of review depending on whether they want the appellate court to affirm or reverse the judgment below. Good appellate lawyers find ways to craft arguments in terms of the standards that are most favorable to their clients.
A Cold Record
Every trial lawyer knows the importance of discovery. The process of discovery – requests for production, interrogatories, document review, and depositions, as well as the accompanying disputes over the proper scope of discovery – takes up the lion’s share of time in litigation. In fact, it is arguably the most important part of a lawsuit. Cases are won or lost based on the evidence each side presents, so the process of obtaining that evidence is crucial to success.
While discovery is a cornerstone of trial court practice, it is virtually non-existent on appeal. With a few exceedingly rare exceptions, appellate courts do not consider new evidence. Instead, they review decisions based solely on a “cold record” – that is, the evidence that was already presented to the trial court. For better or worse, appellate lawyers must work with what they have to make the strongest case they can.
Because establishing an effective record at the trial court level is so crucial, parties in high-stakes lawsuits will sometimes retain appellate lawyers at the trial stage. An appellate lawyer can help “second-chair” the case or consult with the trial lawyers on how to make the best record with a potential appeal in mind.
At the trial level, a case is assigned to a judge shortly after the initial filing of the lawsuit, and typically, the same judge presides over the entire case from beginning to end. The parties and lawyers will likely get to know that judge pretty well over the course of a lawsuit, as the judge presides over many hearings and rules on many motions. Once the case goes to trial (assuming it does), the lawyers will probably have some sense of the judge’s preferences and tendencies, and they can tailor their arguments accordingly.
In contrast, most appellate courts assign a randomly chosen three-judge panel to hear each appeal (except for en banc and supreme court proceedings, which make up only a small fraction of appeals). Generally, the composition of a panel is not made public until about a week before oral argument. Some courts, such as the U.S. Court of Appeals for the Seventh Circuit, do not announce panels until the day of argument. The upshot of all this is that lawyers handling appeals do not know their audience until long after briefing is complete, and therefore, they cannot tailor their briefing to suit a particular judge’s preferences.
A typical lawsuit involves dozens of motions (or more), each one briefed by the parties and decided by the judge in an order or a minute entry. Lawsuits also involve many other components: requests for production, disclosures, depositions, jury selection, and so on. Good trial lawyers are adept at coordinating all these “battles,” over many months or even years, to gain the upper hand in the “war” of the lawsuit.
An appeal presents a completely different dynamic: the parties have one chance to persuade a panel of judges, who are completely new to the case, to affirm or reverse the trial court’s final judgment. This kind of advocacy requires a different skill set from trial lawyering. An effective appellate advocate must know how to narrow down the myriad trial-level issues to a handful of effective arguments, frame those arguments in a context that conveys the narrative of the entire lawsuit, and present them clearly and succinctly to a reader who is new to the case. This requires approaching the issues with a fresh perspective and some degree of detachment, and it can be particularly challenging for a trial lawyer who has already spent countless hours in the trenches of the case.
Authority Is More Complicated
All courts – trial and appellate – must follow binding authority. Critically, however, appellate courts vary widely on what authority is “binding.” For example, the federal circuit courts follow the principle of “horizontal stare decisis” when it comes to published opinions. This means that a prior published opinion from the same circuit on the same issue is binding on all future panels (unless it is overturned by the full court sitting en banc, or by a higher court). In contrast, many state appellate courts, state supreme courts, and the U.S. Supreme Court are free to overrule their own precedent.
Appellate courts also vary widely when it comes to the weight of persuasive (i.e., non-binding) authority: for example, unpublished decisions, decisions from other appellate courts, and trial court decisions. While some of these issues are addressed in court rules, others are not. Good appellate advocates are intimately familiar with the courts they practice in – often from having worked in those courts themselves as judicial clerks – and they ground their arguments in authority that will carry the most weight with the judges deciding the case.
It’s Not Just About Your Case
The law often gives trial courts considerable discretion to do justice under the unique circumstances of a given case. Trial judges are particularly suited to this task, given the amount of time they spend managing lawsuits and interacting face-to-face with parties, attorneys, and witnesses. While trial judges must get the law right, they also strive to apply the law as equitably as possible under the specific facts of a case.
Appellate judges also endeavor to do justice in every case, but they have another concern as well. When an appellate court decides a case, its decision does not merely affect the case at hand; it serves as guidance for future cases. Thus, appellate advocates must not only persuade a panel that their client deserves to win. They must convince the panel that if it sides with their client, that decision will be sound enough that it can be cited as good authority by future litigants and courts in other cases – including cases that might involve very different circumstances. This aspect of appellate advocacy often requires a more abstract, academic approach to the law than typical trial advocacy.
After the parties submit their briefs, the court may schedule an oral argument to take place in front of the panel of judges who will rule on the appeal. Oral argument practices vary considerably from one appellate court to another. For example, some courts hold oral argument in virtually all appeals, while others do so only in the most complex cases and resolve the rest “on the briefs.”
Like oral arguments at the trial level, each party is given a set amount of time to make its case. Unlike arguments at a jury trial, however, appellate arguments tend focus on technical legal issues, and they often involve a dialogue with the judges, who frequently interrupt with questions and comments. Inexperienced advocates sometimes make the mistake of employing emotional appeals and other rhetorical techniques more suited for jury trials. This is almost certain to backfire in front of a panel of appellate judges, who tend to view oral argument as an opportunity to have an in-depth conversation about the legal issues and are highly suspicious of anything resembling a “stump speech.”
These are just a few of the ways in which appeals fundamentally differ from trial court litigation. In recent years, more and more clients who are involved in appeals have turned to lawyers who focus their practice mostly or exclusively on appeals. This makes sense: although people often think of trial court proceedings and appeals within the same broad category of “litigation,” the two require very different skill sets. If you are involved in an appeal or a lawsuit that is likely to progress to the appellate stage, you should seriously consider retaining an appellate lawyer to help present your case as effectively as possible.
John Thorpe is an attorney at Davis Miles McGuire Gardner who focuses on appeals and critical motions. He has clerked on the United States Courts of Appeals for the Ninth and Tenth Circuits and worked at a large law firm on appeals and complex commercial litigation. During law school, he honed his appellate advocacy skills by externing at the Arizona Solicitor General’s Office (which handles all appeals for the State of Arizona) and the Arizona Supreme Court.
Special thanks to Angelika Doebler and Lilly Harris for their contributions to this article; all mistakes are John’s.