Overview of the Appellate Process

A Multi-Step Process | Trial Courts | Appellate Courts | The Appellate Review

Not all courts are alike

Most people have some misconceptions about what happens in the Court of Appeal. Many base their perception on what they've seen on television, movies, and occasionally, televised trials. The drama that can be associated with trial courts is not even remotely a part of the workings of the appellate court.

Appellate courts have an air of mystery about them, precisely because they are not a trial court: there are no witnesses giving testimony, no prosecutors or defense attorneys, and no evidence submitted or argued over. In fact, the only public part of an appeal happens when the parties convene for oral arguments-- when the case is argued in front of the appellate justices. This process is sometimes waived by the attorneys, and even the justices don't always want to hear arguments.

The task of appealing your case will be quite different than what occurred at trial. It is a
multi-step process, in a system that has its own rules of court, procedures and decision-making regarding the cases that are heard. There are no guarantees that even a timely filed notice of appeal will result in a decision by the Court of Appeal reviewing the trial court judgment. That's why it requires an attorney with highly specialized skills to help you navigate your request through the system to increase the likelihood of it being heard, let alone reversed.

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The Trial Court

At the trial court level, each party attempts to prove that his or her case is "right", or "just" before a judge or a jury. In order to do that, each side presents evidence in the form of testimony and documents. Our system of law is known as an adversary system where each litigant’s attorney attempts to win the case for his or her client and no help is given to the opposing side. It is the job of the attorneys to protect their client’s right to a fair trial or hearing by objecting when the other side tries to win the case by unfair methods, such as by introducing irrelevant or prejudicial evidence, or evidence that is unreliable such as hearsay or coerced confessions.

It is not the judge's job to make the final decision in the trial-- it rests with the trier(s) of fact.
It is the trial judge's obligation to make sure that the evidence presented complies with the rules-- so that that one side does not have an unfair advantage over the other. The judge also rules on objections, and decides if testimony can be allowed. The trier of fact is either a jury, composed of 12 members in a criminal case, or 9 in a civil case, or a judge if a jury is waived or the constitution or state statutes do not provide for a jury. For instance, in probate matters, and juvenile court, there is no right to a jury trial and the judge makes all the decisions, as well as the final verdict.

As the moderator, the judge instructs the jury on the law that applies to the case and the task of the jury is to apply the facts to the law to come up with a decision. In order to work properly, each side needs a skilled advocate who makes all necessary efforts to investigate and prepare the case for trial, to introduce all the evidence that will support his or her case, and to keep out objectionable evidence or argument that would prejudice his client’s case before the trier of fact.

The trial system assumes that the judge will make all the correct rulings to ensure that only admissible and non-prejudicial evidence gets to the decision maker(s), and it assumes that the jurors making the decision, will correctly apply the law to the facts.

While this is the theory behind our adversary system, it rarely works this well in practice.

The Appellate Court

There is also a common perception that the appellate courts act as a kind of "super jury" that will correct misjudgments or poor decisions by the jury in the trial court. On the contrary, the appellate court justices do not sit as a "new" judge or jury to re-decide a verdict. It is the function of the appellate court to review the judgment of the trial court to ensure that the trial court proceedings were fair and that the judgment is reliable. In other words, the court must answer the question:
did every party in the (appealed) proceeding get a fair hearing of their respective case?

The responsibility of the appellate court in reviewing the sufficiency of the evidence is to simply determine if there was any evidence in the trial record to support that judgement or verdict. The “appellate record” is the trial clerk’s transcript consisting of the papers filed by the attorneys in the trial court, the minutes of each day’s court proceedings, the exhibits and evidence introduced by the parties, and the court reporter’s transcript which is the written record of what was said in the courtroom by the attorneys, judge, and witnesses.

When one party or a defendant feel that the jury or judge did not decide the facts of the case fairly or properly in their favor, they have the right to appeal that decision or verdict. The job of the appellate court is to determine if the attorneys, the judge and/or the jury performed their duties so that the result of the trial can be considered reliable. While a defendant or litigant may complain that a verdict was "unjust" or "unfair", the appellate court will not consider their opinion in its review of a case on appeal. The court instead, relies on the attorneys from each side to prepare a brief telling the court what the problems were in the trial, and how those problems may have affected the outcome.

Unlike the trial court where a single judge acts as a moderator, at the Court of Appeal multiple justices hear the case. Progressing along the appellate stairwell from Court of Appeal, to State Supreme Court, to United States Supreme Court, the stakes get larger and therefore the number of justices that must be convinced gets correspondingly greater:

• there are three justices at the State Court of Appeal;
• there are three justices at the Federal Court of Appeal;
• there are seven justices at the California Supreme Court;
• there are nine justices at the U.S. Supreme Court.

It makes sense that the greater the impact an appellate court decision has on the lives of ordinary citizens, (and the rulings of the U.S. Supreme Court have the greatest impact) that a correspondingly greater number of jurists should be convinced of the merit of the decision.

The Appellate Review

How the appellate court conducts the review of the record on appeal is known as the “standard of review.” For instance, if the question is whether or not the trial court properly applied the law or gave correct instructions, the appellate court can rely upon its own interpretation of the law and applies what is known as “de novo” or “independent review.”

This requires a more exacting review of the record by the appellate court because the court must be sure that its opinion is right on the facts and the law instead of simply determining whether the reasons given by a party in a brief are wrong or unsupported.

If the court is determining whether the verdict of a jury or findings of the court are supported by the evidence presented at the trial or hearing, the court applies what is known as “substantial evidence” review. The court will affirm the judgment if there is credible evidence in the record supporting it. It is up to the trier of fact, be it judge or jury, to determine which side had the better factual argument at trial and this cannot be litigated again in the appellate court. You need to be aware that when a case is reviewed, there is the presumption that the trial court's verdict is correct-- the burden is on the appellant to show the Court of Appeal why it needs to reverse the decision.

If the question is whether the trial court conducted the proceedings in an appropriate manner, the court applies an “abuse of discretion” standard which requires only some rational reason for the court’s action. For example, the trial court exercises its discretion in pretrial matters, such as the scope of discovery allowed to each side, and trial matters such as the length of time and scope of examination of witnesses.

If after applying the appropriate standard of review the appellate court determines that an error was made, the court must then determine whether that error affected the final result. This also requires application of various standards of review depending upon the type of error involved. Depending upon which “standard of reversible error” the Court of Appeal chooses, the party seeking to have the judgment reversed may have the burden of proving prejudice or the party seeking to have the judgment affirmed may have to prove the error was harmless.

For instance, errors that violate the constitutional rights of an individual guaranteed by the Bill of Rights are reviewed under a “harmless error” in which the party seeking to have the judgment affirmed must show that the error was harmless beyond a reasonable doubt. On the other hand, most errors involving the admission or exclusion of evidence are viewed under the “prejudicial error” standard which requires the appellant to show some concrete way in which the error actually affected the result

For more information regarding the appellate process, please refer to
the Appellate FAQs.