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What Is Litigation and Appeals?

When you hire an attorney to go to court, you may have some idea of what goes on. The courtroom is a huge, wood-paneled room, the jury sits in a large uncomfortable box at one side, and the judge is a stern-faced individual in a black gown who glowers whenever anyone speaks too loudly. The attorneys sit at their respective tables and...litigate.

What is litigation? Do all attorneys litigate? And do all court cases involve litigation? How does your attorney choose which court to bring your case to? This article reveals some of the secrets of the court system and what litigation and appeals mean for you and your lawyer.

Litigation, Appeals, and the Courts

Litigation is the process of arguing a case in court. Courts are broadly divided into criminal, which handles violations of the law, and civil, which handles everything else.

Criminal courts have divisions that hear criminal cases according to type. Depending on the size of the state or county, a criminal court division may include:

  • Juvenile court for youthful offenders
  • Traffic court for traffic violations and DUIs
  • Arraignment and first appearance court
  • Minor crimes

Sometimes these courts may interact with the civil court divisions. For instance, juvenile court may overlap with family court, especially if a juvenile offender has family and legal issues. In these situations, a family law judge may sit on both cases to work on reconciliation rather than jail time.

Civil courts also have multiple divisions. They may share courtrooms with the criminal court or have their own courthouse in large cities. Civil court divisions may include:

  • Family court
  • Small claims court
  • Probate court
  • Limited and unlimited civil (refers to the amount at issue in the claim)
  • Housing court

Not all legal matters require a trial lawyer. Some family law cases are not argued before a judge. Many probate matters do not involve trials or oral arguments.

The Courts

There are two court systems that run parallel to each other. Most people are familiar with the state courts, which deal with civil and criminal matters within the state and its counties and cities. If you've attended any court proceedings, chances are they were in state courts.

Federal courts handle crimes like terrorism, kidnapping, and financial crimes which cross state lines. Bankruptcy, immigration, and tax courts are also federal courts.

Each court system has multiple layers or levels. When someone says, "I'll take it to the Supreme Court!" they're in for a long haul because going from the state court to the Supreme Court has many steps.

The lower courts in the state system have three or four tiers, depending on the state. Most states have:

  • The trial court: Also called the superior court, district court, or circuit court. New York calls its lowest trial court the Supreme Court, but they are the only state that does this.
  • The appellate court: Most states have an intermediate court of appeals to review trial court decisions and sentences.
  • The state Supreme Court (in New York State, the Court of Appeals): It is the final court in the state system and can overturn decisions of the lower courts.

Some states have county or municipal courts to hear small claims and county code violations. In these jurisdictions, the circuit courts review the county courts' decisions before they go to the appellate courts.

Federal courts also have a three-tier system:

  • Federal circuit courts hear cases involving matters referred from state courts, usually because of diversity jurisdiction issues. Some claims require the parties to be from different states, or the claim cannot proceed. Federal court serves as a venue for diversity jurisdiction.
  • Federal appellate courts review decisions made in federal circuit courts. It can also hear appeals from state circuit courts on specialized matters like patent law and trade law.
  • The U.S. Supreme Court can review cases from any lower court. The Court limits its review to interpretation of federal law and constitutional questions.

Attorneys receive certification to argue in the federal circuit court in their state. Before an attorney can argue before the Supreme Court, they must be admitted to the Supreme Court Bar.

The Trial Process

The trial process is about determining the facts of the case. Not all legal matters have facts to resolve. For instance, a child custody case where the parents discuss a parenting plan and visitation does not need a trial attorney to assist with the procedure.

A trial occurs because the parties cannot resolve their problems through other means. In a criminal case, the defendant has a presumption of innocence, and the prosecutor must show enough facts to prove their guilt. In a civil case, the parties disagree on one or more facts, and their attorneys must present additional evidence to show which side is correct.

A trial may be a bench trial, where the judge decides which side prevails, or a jury trial, where a panel of jurors makes the final decision. In a jury trial, the judge oversees the procedure and determines what evidence may be presented, what witnesses may testify, and how the attorneys may ask questions.

The Appeals Process

An appellate court does not try the case again, as some people believe. The appeals court only reviews the trial court's decision for procedural errors. Most attorneys have never appealed a case to any higher court. You should look for an appellate lawyer if your case needs an appeal.

The appeals process begins when one party disagrees with the trial court's decision. Just because you disagree does not mean you automatically get an appeal. Appellate law requires that there be an error of fact or law in your case that would have changed the outcome. For instance, if the judge allowed the introduction of unlawfully collected evidence, you might have grounds for appeal.

Appellate litigation is all about paperwork. It begins with the appeals lawyer writing an appellate brief highlighting the error in the trial court verdict. The appellate brief goes to the appeals court, which consists of three to five appellate judges. If they agree to hear the case, the opposing appeals attorney files a response.

The entire appellate case turns on the legal record. The appellate attorneys present no new evidence, call no new witnesses, and may not make any oral arguments. Some appeals courts may hold brief appearances so the judges can ask questions.

The appeals court can reach only two decisions. Either they uphold the lower court's verdict or reverse the decision and remand the case back to the lower court for a retrial consistent with their findings. For instance, if they find the judge should not have allowed the evidence, they will return the case for a retrial without the evidence.

Finding a Litigation Attorney

Not all attorneys are litigation attorneys. Lawyers may put litigation in their practice areas, but that does not mean they have experience in litigation or in all their practice areas. An attorney who handles family law may be familiar with divorce litigation but not with personal injury claims.

If you believe your case may require litigation, you should look for a litigation attorney in that practice area. If you have a real estate problem, look for a litigator with real estate experience rather than a real estate attorney.

When it's time for an appeal, look for an experienced appellate attorney. Some lawyers specialize in appellate practice because it is an intensive area of law. Appellate law involves extensive legal research and understanding of the legal system.

There is litigation in every practice area. Even contract and corporate attorneys study litigation to give their clients legal advice when necessary. If you need an appellate attorney, use the FindLaw lawyer referral service to find one near you.

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