The Candid Review: A Blog About Appeals

What Does an Appeal Lawyer Do and What is an Appellate Lawyer?

Appeal lawyers take cases from lower trial courts, such as criminal courts or civil courts, and appeal or challenge those cases in higher courts such as a Court of Appeal or Supreme Court.   Appeals take place in both state courts and federal courts. State Courts are normally divided up into trial courts, Courts of Appeal, usually called District Courts of Appeal, and a State Supreme Court.  Federal Courts are divided up between a District Court that hears trial court issues, a United States Circuit Court of Appeal, and the United States Supreme Court.  Appeals attorneys take cases from trial courts that hear both civil or criminal cases and appeal them to higher courts in order to reverse a decision of a lower court judge, challenge a jury’s verdict, overturn an error of law made before a trial judge or jury, and review a decision by a trial court judge on a motion to suppress in a criminal case or a motion in limine in a civil matter.  If a losing part appeals a case to a higher court that party is normally called the Petitioner or the Appellant. If a winning party responds or answers an appeal before a higher court that party is called an Appellee or Respondent.  In either case, the appeals attorney is responsible for filing a brief to argue the merits of the law as it applies to the underlying facts presented before the trial court judge or the trial court jury.

What is an Appeal?

An appeal is the best way for a party to challenge a decision by a lower court judge or a jury’s verdict.  Appeals can be made in both criminal and civil cases. An example of a criminal appeal occurs when a criminal defendant loses a pre-trial motion such as a motion to exclude evidence, motion to suppress evidence, or motion to continue a trial.  Criminal appeals also occur if a defendant is convicted at trial before a jury. The defendant may appeal both the judgement or conviction, as well as the sentence. Mistakes are made during trial so the appeal process ensures that trial court judges and juries follow the law.   An example a civil appeal is when a party wants to challenge or overturn a judge’s decision on a matter of law or evidence.  Trial court may allow evidence that should have been excluded. In that type of case, a person may appeal to a panel of appellate judges to review a decision.

Does my trial court lawyer need to object so I can appeal?

In most cases a trial court lawyer must object either before trial or during trial in order to preserve an issue for appeal.    Objections are necessary in both criminal and civil cases.  Here is why an objection is necessary in order to appeal an order or lower court decision to the court of appeals:   Appellate court judges require an objection in order to give the trial court a chance to make a decision as a matter of law on the issue presented.  For example, a trial court lawyer may object when opposing counsel asks a leading question to a witness. If the leading question influences the result of the trial, and an objection is made, then the decision of the trial court judge to admit or deny the evidence may be appealed to a higher court panel of judges to review the decision of the trial court judge.  While objections are necessary in order to preserve an issue for appellate review, there are some exceptions to the rule. For example, some decision of lower court judges or juries may be reviewed by an appellate court in the event there is plain error.  Plain error issues do not require a contemporaneous objection to be made in the trial court.  Plain error issues are so extreme or unfair that they allow an appellate court to review the issue even if there is no objection.  Regardless, besides a plain error issue, in most cases the safest way to obtain appellate review and preserve an issue for either a civil or criminal appeal is to make sure a proper objection is made at the time of the disputed issue.

What Do Appeal Attorney Do?

Appeals attorneys file brief before appellate courts in order to seek review of errors taking place in a trial court.  Briefs are normally divided up into factual matters presented in the lower court, standards of review that the appellate court must used in order to review lower court decision or order, and arguments of law that analyze why a lower court decision is an error of law.   Normally, appeal lawyers may not file issues on appeal that are outside the record on appeal. In other words, appeals lawyers are often confined to the transcript of the proceedings that took place in the court below.  The record on appeal is all that can be used to file an appeal.  Appeals attorneys are not permitted to introduce new evidence on appeal or before the court of appeals. So, appeal lawyers must only use facts, evidence and matters of law that were presented to the trial court judge or jury in order to brief or file an appeal before the court of appeals.

Our next article will focus on panel of judges and how appellate court judges review decisions of trial courts and overturn cases based on the law or facts. Connect with Brownstone Appellate Litigation law firm to learn more about the appeals process.