Appeals, Appellate Courts, and Costs

After receiving an unfavorable court ruling, people often vow to appeal the decision. While appealing a trial court's decision seems like the right thing to do, sometimes it's not. To decide whether to make an appeal, you need to know how the appeals process works.


What Is an Appeal?

An appeal is a request from a party in a lower court proceeding to a higher court (court of appeals) asking for an appellate review and modification or reversal of the lower court's decision. For example, after a guilty verdict in a criminal case, the defendant has the right to appeal the conviction or sentencing. It's common in defendant appeals to request a new trial due to:

  • Ineffective assistance of counsel
  • Evidentiary issues
  • Constitutional rights violations

When Can You Appeal?

A defendant in a criminal trial may appeal after being convicted. Each jurisdiction has a limited amount of time to file an appeal. It's essential to check with your attorney regarding the time frame. Civil cases differ from criminal court cases.

Usually, only the defendant in a criminal trial may file a direct appeal, as the prosecution cannot appeal a defendant's acquittal (a finding of "not guilty"). In addition, after an acquittal, the prosecutor may not retry the same defendant for the same charge with the same evidence. This is commonly known as double jeopardy, prohibited under the Fifth Amendment of the United States Constitution.

In state and federal jurisdictions, appeals are limited to final judgments. The only exceptions to the final judgment rule are:

However, before or during a criminal trial, a prosecutor may be able to appeal specific rulings (decisions of the court). An example would be when a judge has ordered that some evidence be "suppressed." In district court, appeals that take place during a trial are interlocutory appeals.

How Does the Appellate Court Work?

Federal courts follow the Federal Rules of Appellate Procedure. State courts follow their own state rules of appellate procedure.

The person filing the appeal — for example, a criminal defendant appealing a guilty verdict — is the appellant (also known as the petitioner). The party responding, such as the prosecution, is the appellee (also known as the respondent). The issues under review in appellate courts center on written briefs prepared by the parties. In these complex documents, the parties list the following:

  • Questions for the court of appeals to review (including a table of contents)
  • Arguments in support of each party's position
  • The legal authority (case law or rules of criminal procedure) supporting the requested finding
  • Request for relief (such as remand to trial court for a new trial)

Most appellate courts do not hear oral arguments unless there's a specific request by the parties. Few jurisdictions allow for oral argument by default. If allowed, the oral argument must:

  • Clarify legal issues presented in the briefs
  • Adhere strictly to the issues on appeal
  • Keep to a strictly enforced time limit (extension of time only upon the discretion of the court)

These are the categories reviewable on appeal:

  • Questions of law
  • Questions of fact
  • Matters of discretion

What Are the Basic Parts of Filing an Appeal?

First, you must file a notice of appeal. The deadlines for filing a timely notice of appeal with the appellate court clerk vary based on the grounds on which you're appealing. As you face specific deadlines, the respondent (the party against whom you are filing the appeal) must meet their own timely response to your challenge of a lower court's decision. Your notice of appeal must attach the district or circuit court order.

Another critical step in any appellate process is drafting and filing the appellate briefs. These briefs include all arguments the parties to the appeal will address during the higher court's review of your case. Typically, parties are not allowed to address new issues not previously raised during earlier stages of your case. As a general rule, no new evidence may be introduced on appeal.

The appeal is not a redo of the trial. Rather, the appellant is asking a higher court to review the lower court record and decide whether there was an error in the admissibility of evidence, objections, or other matters of law. The record includes:

  • All documents filed into the case (affidavit of service, pleadings, post-trial motions)
  • Admitted evidence (such as exhibits)
  • A transcript of the trial (as recorded by the court reporter)

If You Lose Your Appeal, Are You Done?

If your appeal is denied, you can file a petition for rehearing. This petition requests that the appellate court:

  • Reconsider its decision
  • Correct a legal mistake in its order or opinion

Usually, individuals may only file an appeal with the next higher court in the same system in which the case originated. For example, suppose someone wants to appeal a decision from a state trial court. In that case, normally, they file their appeal to the state's intermediate court of appeals. The party who loses may then appeal to the state supreme court, which is almost always the final word on matters of that state's law.

In criminal cases, a federal court may review a conviction after all of the state appeals have been exhausted. A convicted defendant may request this review in a writ of habeas corpus petition. This is a challenge to prisoner's confinement as wrongful and unconstitutional. Only a small percentage of these petitions are granted.

In death penalty cases, these petitions become highly controversial, given the stakes. A judicial or prosecutorial error has extreme consequences, so courts carefully review petitions for writs of habeas corpus in capital punishment cases.

An appeal may continue upward through the court system until it is heard by the U.S. Supreme Court if the court grants certiorari. When deciding whether to review a case, the justices of the Supreme Court use "The Rule of Four." This means the court will review the case if four or more of the nine justices agree that it has unsettled questions of law concerning a federal or constitutional issue.

Once the U.S. Supreme Court has ruled on an issue, a person has exhausted their options within the appeals process. A person cannot appeal a decision by the U.S. Supreme Court, as it is the highest court in the United States court system.

How Much Does It Cost to Appeal?

The cost of your appeal covers a wide range of services. It includes the cost of your attorney's guidance and administrative fees. Therefore, an appeal may range from hundreds of dollars in filing fees — or the fees you pay for docketing a case on appeal — to thousands of dollars in attorney fees.

Single-issue appeals are less expensive. Since the appeal is focused on only one clearly defined issue of law, once all sides prepare satisfactory briefs, it may cost very little to appeal if there is no oral argument.

On the other hand, if someone appeals on several grounds — for example, saying the verdict reached goes against the weight of the evidence — their appeal can be very costly. It requires:

  • Printing of the entire trial record
  • Extensive analysis and briefing
  • A large amount of lawyers' time (high billable rates)

You could also be on the hook for paying the opposing party's legal fees and costs. For example, it's not uncommon for parties to an appeal to enter into an agreement where the losing side commits to paying these expenses. It's important to confirm this in your cost-benefit analysis as you consider whether to engage in an appeal, as they often turn out to be less successful.

Suppose you cannot pay the filing fees or other administrative costs, such as trial transcripts. In that case, you may qualify for a fee waiver by claiming indigent status when you file the notice of appeal. Jurisdictions vary on the eligibility requirements, so contact the clerk's office to avoid missing the time period for an appeal.

Get Prepared for Your Appeal With the Help of an Attorney

If you are facing misdemeanor or felony criminal charges, it doesn't hurt to look ahead. Consider all your options after consulting an attorney, including the possibility of appealing a conviction and how much it might cost.

The state and federal court systems are unique and follow different procedural rules. You could have one attorney representing you at trial and another on appeal, as some attorneys only specialize in criminal appeals. Contact a litigation and appeals attorney today for more information.

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