What’s Different about Appellate Law?

When any party has an adverse result in a court of law, their first reaction is to think about “appealing.”  That’s a natural reaction, rooted in the mechanics of our system of justice and based on a common sense desire to prevail.  However, it is important to understand more about the appeals process and appellate law in general before actually deciding to take such a step.

With analogs in the English justice system, both state and federal court systems typically have multiple judicial levels, and judgments at a lower level can sometimes be appealed to a higher level – even in some rare cases to the US Supreme Court.  However, not all matters can actually go through this process and some matters simply aren’t worth the trouble and expense.

What can be appealed is generally defined by statute.  In California, for instance, you must determine if you are a person or party who can appeal, whether you have a matter that is appealable (such as a judgment, an appealable order, or an order after judgment) – and you must file the proper form within an allotted period.  What can be appealed and where is generally well defined. But there can be some leeway. And courts can, of course, decline to take an appeal.

Crucially, once you go down the path of an appeal, you need to be aware that it won’t look too much like an encounter with the lower court system.  For example, whether at the federal or state level, appellate courts usually do not deal with direct evidence. Instead, they focus on reviewing the way the lower court applied the law.  (For a brief but illustrative example of an appellate matter, see McCallum v McCallum.) Often, too, the appellant is restricted in what arguments can be introduced during an appeal (again, the focus is on reviewing what’s already been decided rather than reviewing facts or introducing new information).

Because of these factors – and others – only a small percentage of decisions make it to an appeal. And appeals courts are generally reluctant to question or alter those judicial decisions. One widely quoted comment from a historical case, says, “I think it beyond question that it is generally the duty of an appellate Judge to leave undisturbed a decision of which he does not clearly disapprove. I conceive that, in our Court, as in the civil law, it is the rule that ‘gravely to doubt is to affirm.’[1]

Furthermore, appeals can be costly and can require a different style of legal representation.

This is not to suggest that appeals should not be considered. On the contrary, there can be many occasions when the experience or discernment of a lower court seems so at odds with reason, that an appeal makes sense. Similarly, the financial stakes involved will clearly make a difference. And when there are opportunities to choose among potential venues, there can sometimes be good opportunities to get a desired result (based on precedent or practice in a specific jurisdiction).

Additionally, sometimes there’s little choice. For instance, in Cohen v. (Confidential), a high-profile plaintiff's contingency attorney unsuccessfully prosecuted an underlying wrongful discharge case. Both the trial court and the Court of Appeal in the underlying case stated that there was no merit to the case and no evidence to support it. Based on those statements, the employer, the successful defendant in the underlying case, sued for malicious prosecution and was demanding substantial punitive damages from our client. Mr. Garrett tried the case. The court granted a non-suit in favor of our client.

The point is that a decision to move ahead should be made with legal input, proper preparation and a strategic understanding of the risks, costs, and potential rewards.  Only then can the true worth of an appeal be determined.

Additional information about appellate law in California is available online ( About the California  Courts of Appeal).

[1] Knight Bruce, L.J., The Attorney-General v. The Corporation of Beverley (1854), 24 L. J. Rep. (N. S.) Part 7, Chan. p. 376.


Comments are closed.