Appellate Procedure
From dKosopedia
Appellate Procedure is the process by which decision made by trial courts (called Courts of First Impression in Civil Law countries) are reviewed for accuracy, typically at the request of dissatisfied parties (although some Civil Law countries also review a random sample of lower court decisions in a manner similar to an audit.)
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When Parties May Appeal, United States
In the United States, the right to appeal differs greatly between criminal cases and civil cases. In a criminal case, prosecution appeals are primarily confined to pre-trial issues, sentencing and mistrials. A judgment of acquittal by a jury cannot be appealed by the prosecution. Defendants, in contrast, only appeal if they are convicted and can even appeal from a sentence impose after a guilty plea. In civil cases, either party can appeal. The direct right to appeal to a higher court is not a right protected by the United States Constitution, but, if a state or the federal government chooses to give a person a right to appeal, that right must comply with the United States Constitution and in practice a right to appeal is present in almost every case.
Except for rare circumstances, appeals before a trial has been completed, called "interlocutory appeals" are not allowed in courts in the United States. Appeals after a trial must typically be brought very shortly after a trial is decided (often 30 to 60 days depending on the particular court in question). Typically an advisory "notice of appeal" is filed first, and followed up with a full brief of the issues a month or two later.
What Parties May Appeal, United States
Generally speaking, an appeal is only allowed in the United States on the grounds that the judge made an erroneous ruling of law or on the grounds that the jury reached a conclusion based on the facts that "no reasonable person" could have come to based upon the evidence presented. Where a trial judge is not mandated to come out one way or the other on an issue an appeal court can only overturn the trial judge if there is an "abuse of discretion". The type of issue appealed thus impacts the "standard of review" applied by the appellate court. Conclusions of law and certain kinds of documentary evidence are reviewed "de novo" (i.e. from scratch with no deference to the trial court) by the appellate court. Findings of fact and discretionary decisions have a higher standard of review.
Generally speaking, appeals are only allowed if an issue was "raised" in the lower court, to allow that court to resolve the isssue, unless it was "plain error" (i.e. a mistake so obvious no lawyer would have been unaware of it). Appeals will also only prevail if the appealled issue would have changed the result in the case. Other mistakes are called "harmless error". This is obvious in some instances, but a matter of considerable debate when matters such as evidence rulings are disputed.
What Appellate Courts Consider, United States
Appellate courts make their decisions based on "the record" in a case which is a transcript of all testimony and statements made in the trial court as recorded by a court reporter and all the exhibits admitted at the trial court, as well a legal "briefs" which are research papers several dozen pages long in a highly stylized format which apply the law to the relevant facts, citing with specificity to authoritative legal sources. In confusing or important cases, appellate courts also often have brief "oral arguments" typically for half an hour to an hour and a half to flesh out questions the judges have about the presentations in the briefs. In administrative law cases, the "record" is prepared by a government agency based on public hearings, rather than a lower court. Each side presents briefs of a particular length and in a particular sequence in an order set out by the appellate rules.
Common law country lawyers are careful to make sure that all the facts they need to appeal a case appeal in a trial court record. If they fail to do so, they may not raise those facts on appeal even if they would change the outcome.
Appellate briefs are typically widely available as a matter of public record, but appellate courts differ greatly over whether or not oral arguments may be tape recorded or videotaped (generally preventing this from happening) even thought the public is allowed to view oral arguments personally and take notes.
To Whom Cases Are Appealed, United States
Appeals of general jurisdiction cases are generally heard by an intermediate appellate court panel of three appellate judges, and appeals of intermediate appellate court decisions (or any appeal from a general jurisdiction court in a state without an intermediate appellate court) are generally heard by all the members of a Supreme Court (by whatever name it goes) with five to nine judges. Some intermediate appellate courts (most notably the United State Courts of Appeal sometimes will second guess themselves by having all judges in the court review the decision of the three judge panel in what is called an "en banc" review which brings consistency to the intermediate appellate court's decisions and takes some of the burden off a Supreme Court. (A single general jurisdiction trial court judge sometimes decides appeals from courts of limited jurisdiction).
Judicial Lawmaking, United States
When there is no prior case or statute that definitively resolve a legal issue ("cases of first impression"), or when the case law has cast doubt on whether prior rulings of the courts are still valid, an intermediate appellate court has the authority to decide what the law is in a case. A supreme court has broader authority and may even overrule its prior case law because it was incorrect or there has been a change in circumstances. The balance that appellate courts strike between honoring past precedents and making changes when circumstances call for it is called the doctrine of "stare decisis". Much of the "common law" in civil cases consists entirely of court precedents and has no statutory basis at all. For example, the laws that say you have to honor your contracts and maintain sidewalks so that people don't slip and fall is typically entirely court made law. Even most statutory law in "common law" jurisidictions are partial codifications of court decisions. Common law countries expressly delegate the authority to make law to the courts.
In order to prevent abuse of the law making power of common law courts, these courts follow a number of doctrines such as avoiding constitutional issues if statutory law can resolve issues, deciding the law only as it applies to particular cases rather than setting forth general rules, and deciding only issues raised by the parties on the facts in particular cases rather than issuing advisory opinions.
Publication Of Opinions, United States
Almost no state trial court decisions in the United States and only a small percentage of federal trial court decisions in the United States are made generally available to the public in "published opinions". This means that there is often little precedent to guide pre-trial matters which cannot be appealed through normal channels.
At the appellate level, in principal, court decisions in all cases which decide new issues of law or apply the law to novel facts or otherwise have public importance are published (with dissenting and concurring opinions, if any) and may be cited in other cases as statements of the law. In a fairly controversial practice, however, only a minority of appellate court decisions are actually published (allegedly because they apply settled law to facts already presented by simlar prior cases). This makes it easier to stay on top of the published cases in a particular field, but also has the perverse effect of making it relatively hard to find recent cases that support well established principals of law or to distinguish well established points of law from newly established unsettled points of law. The large number of unpublished cases also give repeat litigants (such as prosecutors offices) an edge over less frequently litigants as they can better predict how judges will rule on particular points of law.
Unpublished opinions are not secrets, but also cannot generally be cited in legal briefs and often are not made available to anyone but the parties.
Civil Law Appeals
Civil Law countries, in contrast, have appeals which basically consist of retrials on fact and law of all matters seriously disputed with regard to the trial court's decision. The only record of the facts found by the trial court is the trial court's own notes. Witnesses may be recalled to the appellate court and evidence may be reviewed again. Legal arguments may also be considered, but civil law courts do not have the power to make law in the way that common law courts do. Indeed, prior court decisions are not binding in Civil Law countries, only persausive. Law professors treatises are typically more important than prior case law for interpreting the Civil Codes and statutes in civil law countries. They look only to statutes for binding authority. Appellate courts in civil law countries are also far larger than in common law countries (typically there are at least five judges on a panel and sometimes many more). A Supreme Court in a typical civil law country typically has dozens of judges who hear cases only in their subject matter specialty. For example, in the Ukraine the 2004 election dispute appeal before that country's Supreme Court is being presented to twenty judges who are hearing new evidence of election fraud during the course of the appeal.
Judicial Review
Also, in the United States, every judge from a small claims court judge on up to a Supreme Court judges has the power to declare a law unconstitutional and invalid, which is called Judicial Review. In contrast, in Civil Law countries, judges (even Supreme Court judges) other than judges of the Constitutional Court are required to enforce all laws as written whether or not they are constitutional. The United Kingdom does not have judicial review, nor do most countries with non-federal, parliamentary systems of government.
