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A quick and informal tour of appellate litigation

As with many other fields such as medicine and auto mechanics there are special terms and phrases, used in the legal field for clarity and precision. These words and phrases are short-cuts to discuss technical matters. You may already be familiar with some of these words and phrases, but I cannot assume that everyone reading the pages on this website will understand how they are meant to be understood. Therefore, some of the words you see here and in the rest of this website are hyperlinked to a glossary of words and phrases. Refer to it whenever you are unsure of a term or if you want more information. I have provided my own explanations of the terms and how I use them – they are not dictionary definitions. For a more comprehensive definition of the terms used in this website and in the glossary you should look them up in a law dictionary.

In the following paragraphs I will try to give you a quick tour first of the judicial system, and then the world of appellate practice. Along the way I will use many of the terms you will hear as you make your way through the appellate process. What follows is a simplification of a complex system. It is not meant to be exhaustive and therefore omits many details. Your case will follow a particular path through the court system that an attorney can explain to you.

There are two court systems that operate side-by-side in our country: the federal courts and the state courts. Each court system has trial courts and appellate courts. Each court system has jurisdiction or authority over certain matters although sometimes they can have overlapping jurisdiction. Each court has a specific geographical and subject matter jurisdiction. Each court has its own rules, customs, and practices.

The highest court is the United States Supreme Court. The Supreme Court is a court of last resort, the last stop along the way, in any litigation from either a state or federal court. Although the United States Supreme Court is at the very top of both the federal and state court systems that does not mean it has the jurisdiction to hear any case from any court. In fact, like all appellate courts, the United States Supreme Court is a court of limited jurisdiction; it can only hear those cases that it is permitted to hear under the United States Constitution and the laws of the United States just as the jurisdiction of the trial courts and appellate courts within each state is defined by the constitution and laws of that state. The first court in which a case is heard is called the court of first instance. Some attorneys and judges still refer to the court of first instance as a nisi prius court.

In some states, like New York, there are two levels of appeal: an intermediate appellate court and a high court often called the supreme court. The high court of a state is not always called the supreme court, however. In Massachusetts and Maine, for example, the high court is called the Supreme Judicial Court. In New York and Maryland, for example, the high court is called the Court of Appeals. The New York State Constitution establishes the Court of Appeals, the Appellate Division of the Supreme Court, and the Appellate Term of Supreme Court as appellate courts. In addition, trial courts can also have appellate jurisdiction. For example, under the New York State Constitution County, Courts have both trial and appellate jurisdiction.

Each of New York’s 62 counties has a Supreme Court. It is the highest trial court in the state, which means it has the broadest geographical and subject matter jurisdiction. The Supreme Court has appellate jurisdiction as well. Appeals from Supreme Courts, and other trial level courts are heard by one of four Appellate Divisions of the Supreme Court. These courts are intermediate between the Supreme Courts sitting as courts of original jurisdiction or court of first instance and the highest court in the State, the Court of Appeals.

New York has four Appellate Divisions, numbered one through four. Their geographical jurisdiction is defined by statute. Each Appellate Division is comprised of judicial districts that are comprised of specific counties. The Appellate Division of the Supreme Court for the First Judicial Department is located in Manhattan. The Appellate Division of the Supreme Court for the Second Judicial Department is located in Brooklyn. The Appellate Division of the Supreme Court for the Third Judicial Department is located in Albany. The Appellate Division of the Supreme Court for the Fourth Judicial Department is located in Rochester.

In certain situations, cases decided in intermediate appellate courts can be reviewed again. For example, in some instances, the Appellate Divisions of the Supreme Court will hear an appeal from a County Court, which itself was acting as an appellate court from a matter in which a town court was the court of original instance. Appeals from the Appellate Divisions themselves can go to the Court of Appeals. Bear in mind that what I have said above simplifies what is really a more complex organizational framework. Also, the way things are done in New York does not apply to other states. For example, in Vermont a case is heard by a trial court and then by the highest court in the state, the Vermont Supreme Court. There are no intermediate appellate courts. It is the same in other states such as Maine. There are other states that follow New York’s pattern, for example, California and Massachusetts. In addition, each state names its own courts. So, the highest court in Maine is the Supreme Judicial Court and the highest court in Connecticut is the Supreme Court, not the Court of Appeals. The intermediate appellate court in Connecticut is called the Appellate Court.

Although the following paragraphs refer only to New York appellate practice, the general procedures suggested by the terms are applicable in every appellate court system. Two terms are basic in appellate court vocabulary: "taking an appeal" and "perfecting an appeal." “Taking an appeal” refers to the first step in the appellate process. When a litigant wants to have an appellate court review what a trial judge has done, a notice of appeal must be filed. As its name suggests, the notice of appeal informs the trial court, the appellate court, and any other party that the appellant, that is, the aggrieved party, the party who lost and who is challenging what has happened in the trial court, wishes to have another court, the appellate court, look at the matter. Once the notice of appeal is filed and formally provided to the other party or parties to the litigation, the appeal is “taken.” Each appellate court has different forms and rules that apply to taking an appeal and the failure to use the proper forms and failure to follow the applicable rules can be fatal to an appeal.

Taking and perfecting an appeal can get more complicated. One complication is the right of taking a cross appeal. Very simply, after one party takes an appeal, another party can file and serve a notice of cross appeal. This means that both parties feel aggrieved and want an appellate court to review what happened in the trial court.

“Perfecting the appeal” refers to all of the steps required by the particular appellate court to determine the appeal. This includes compiling a document known as the record on appeal, and producing a document called the brief, which presents the facts of the case as well as legal arguments in support of the appellant’s position. Once these documents are provided to the other party and filed with the court, the appeal is “perfected.” Each appellate court has different rules that apply to perfecting an appeal and the failure to follow those rules can result in the dismissal of an appeal.

I have already mentioned the term “appellant.” The other party to the appeal is called the “respondent” or the “appellee.” After the appellant has perfected the appeal, the “respondent” or “appellee” has the right to file a brief answering the arguments made by the “appellant.” The process becomes more involved if there is a cross appeal. If there is a cross appeal, the cross-appellant-respondent may argue the points of the cross appeal in the respondent’s answering brief or in a separate brief. In many appellate courts, the “appellant” has the right to file a brief replying to the arguments made by the “respondent.” When there are cross appeals, the appellant can file a brief that also answers the arguments made by the cross-appellant-respondent.

Proceedings in appellate courts are not the same as proceedings in trial courts. Appellate courts usually will not consider new facts except in very rare circumstances. This means that an appellate court will only consider those documents filed, verbatim transcripts and evidence presented to and accepted by the trial court in making its determination. The documents, transcripts and evidence compose the record, the specific contents of which are determined by law and court rules. In addition, appellate courts often have more than one judge or justice. For example, the United States Supreme Court has nine justices and the New York State Court of Appeals has seven.

After all of the briefs are filed, most appellate courts hear oral argument. During oral argument no witnesses are questioned, and no new evidence can be submitted. Oral argument is best viewed as an opportunity for the attorneys to answer questions about the appeal from the appellate court. This is the only opportunity that the lawyers have to speak to the justices who will decide the case.

After oral argument, the appellate court issues a decision that determines the appeal. The appellate court will not make a decision on the spot at oral argument. The decision is announced days or weeks after oral argument. Generally the result falls under one of three categories. The appellate court can affirm what occurred in the trial court, which means the determination of the trial court remains in effect. The appellate court can reverse what the trial court did or the appellate court can modify what the trial court did. Sometimes the appellate court will state what the result will be. Sometimes the appellate court will send the case back to the trial court with instructions to make a new order or judgment or to do something else. Depending on the circumstances of a case, an appeal can result in a new trial or the dismissal of a case.

Remember that the information provided above is a simplified overview of the appellate process. It is only meant to assist you in consulting with a lawyer concerning your specific case.


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