What Is Appellate Law?

The following is a short overview of appellate law. Appellate rules vary from state to state, and between the state and federal system. However, the appellate procedures in most jurisdictions have some common elements.

Beginnings of an Appeal

All cases begin in a trial court, and at some point, the case will end in the trial court. The case could be dismissed by the judge early in the litigation, or a final judgment could be entered after a full trial. But at some point, the procedings in the trial court will be concluded. At that point, a party unhappy with the outcome (typcially the losing side, but sometimes even the winning side) can appeal.

An appeal typically begins with filing a notice of appeal in the trial court. The party appealing -- known as the "appellant" -- must also designate an appellate record. The appellate record consists of materials from the trial court that the appellant would like to present to the appellate court and use in appeal.

Standards of Appellate Review

Appellate courts do not retry cases or hear new evidence. Instead, appellate courts review what occurred in the trial court to see if the proper procedures were followed and the proper law was applied. Because of the limited nature of this review, the issues properly raised on appeal are significantly different from those that are raised at trial

The appeallate court will usually defer to the trial court or jury on factual issues. However, the appeallate court has the final word on what the law is. On issues of law -- for example, the interpretation of a statute or the Constitution -- the appellate court will not defer to the trial court but will instead independently decide the issue.

On an appeal after after a pre-trial dismissal -- for example, after a summary judgment motion or a demurrer -- the appellate court will usually review the materials and independently decide whether the case should have been dismissed or whether it should have been allowed to go to trial.

On an appeal from a judgment after a trial, the appeallate court will reverse the judgment only if it finds the trial court committed legal errors that were prejudicial during the trial. Examples of such legal errors include the trial court giving erroneous jury instructions, erroneously admitting or excluding evidence, and failing to follow proper procedures. If the appellate court finds such legal errors, the Court will then determine whether these errors were prejudicial. A legal error is considered prejudicial only if there is some reasonable chance that it was likely to have effected the result in the case. Thus, minor legal errors are usually not grounds for a reversal.


In a typical case, the parties will file a total of three briefs with the court.

The appellant begins with an opening brief. The appellant's opening brief should explain the facts and procedural history of the case, and then explain why the appellate court should reverse.

The non-appelling party -- usually called the "appellee" or "respondent" -- then files a responsive brief. In the brief, the appellee or respondent argues why the trial court reached the right result and why the appellate court should not reverse.

Finally, the appellate can file a reply brief. In this brief, the appellant can argue why the respondent's claims are wrong. However, the appellant may not make new legal argument in the reply brief; the appellate may only "reply" to the respondent.

Appellate Panel and Oral Argument

Appeals are decided by an appellate panel. Usually the appellate panel in an intermediate appellate court consists of three judges chosen randomly from the pool of available appellate judges on the courts. In appeals to state supreme courts and the U.S. Supreme Court, the entire court usually hears the appeal. State supreme courts typically have 7 justices, and the U.S. Supreme Court has 9 justices.

Once the briefing is completed, the appellate court will hear oral argument. The time between the close of briefing and oral argument varies tremendously between different courts.

The oral argument is typically 30 minutes at the most, and is often less than 10 minutes. By the time of oral argment, the judges on most appellate courts will have read the briefs and thoroughly considered the issues.

In the federal courts and some state courts, the court may chose to decide a case without the necessity of oral argument.

At the close of oral argument the case is submitted to the appellate court for a decision.


The appellate panel will usually issue a written opinion explaining why it reached the decision that it did. Like the time between briefing and oral argument, the time between oral argument and the written decision varies considerably between different courts.

If the appellate court deems it appropriate, the written opinon will be published in the official reports and will be binding authority for litigants in the future.

Review by a Higher Court

A party who is dissatisfied with the results on appeal can petition a higher appellate court to review the case. In most states, this would be the state supreme court. In the federal system, it is the U.S. Supreme Court. (If a federal issue is involved, the U.S. Supreme Court can take cases from the state appellate courts.)

With a few exceptions (like death penalty appeals), the state supreme courts and the U.S. Supreme Court are not required to take any particular case; they choose what cases they will decide. Consequently, the petition asking the higher court to take review must be carefully drafted.

Interlocutory Appeals and Appellate Writs

As discussed above, most appeals involve cases that have been concluded in the trial court. However, a party can sometimes take an appeal from a trial court order before the case is over. Such appeals are called interlocutory appeals. Similary, a party can sometimes ask an appellate court to issue an order -- called a writ -- requiring the trial court to modify one of its orders. The circumstances in which a party can file an interlocutory appeal or a petition for an appellate writ vary from court to court and are often very technical.

The information on these webpages is not intended to serve as legal advice or as a guarantee, warranty, or prediction regarding the outcome of any particular legal matter. You should not rely on any information contained on these webpages without first consulting a qualified attorney.

This webpage is written and maintained by
Law Office of Bruce Adelstein