Appellate litigation is a unique practice area in which decisions of the trial court are appealed to the Court of Appeals or Supreme Court in the hopes of obtaining reversal or, if you are the respondent, of solidifying your victory once and for all. Almost by definition, litigants involved in appeals already have some familiarity with the trial court and how the trial litigation process works. But appeals are very different than trial practice in several ways. A thorough understanding of these differences is critical to presenting an effective appellate argument.

1. No New Evidence

Perhaps the biggest and most important difference between trial level work and appellate practice is that the appellate court does not consider new evidence that was not presented below. An appeal is not a do-over and it is not appropriate to appeal a decision simply because you thought of a better argument after the judgment. Rather, an appeal is focused on whether the trial court made an error of law based on the arguments and evidence that it had before it.

2. Mode of Argument

At trial, most of the evidence is presented through live testimony and most of the attorneys’ arguments are made verbally. Even in cases decided by the trial judge on a dispositive motion, the briefs are often short with just a few key citations and the judge may or may not read the briefs before the hearing. Hearings can range from extremely brief to quite lengthy, depending on the judge’s preferences.

On appeal, the written brief is the primary way to present argument. The briefs are long and must comply with many technical requirements. Most appellate judges will readily acknowledge that they often make their decisions based on the briefs before oral argument is held. If there is oral argument, it is strictly timed. Each side may have as little as 10 minutes and rarely more than 30 to present their argument.

3. Types of Arguments

In addition to the differing modes of arguments, appellate practice also differs from trial practice in the types of arguments that are likely to be successful. For example, trials often involve arguments directed to the jury’s emotions and key issues may turn on the credibility of the witnesses.

Appellate courts are more interested in legal arguments than emotional pleas. They do not re-weigh credibility determinations. Appellate courts, unlike trial courts, may also be concerned with how the rule of law applied in this case might affect future cases involving similar issues.

4. The Decision-makers

A trial is presided over by one judge. Often that judge is asked to quickly make decisions about certain issues with little or no legal argument presented to aid the judge in making the decision. On the other hand, the trial judge has the benefit of viewing evidence and testimony firsthand and can better assess issues like credibility.

An appeal will be decided by at least three judges. These judges have the advantage of briefs addressing the legal issues and plenty of time to make their decisions. But there are limits to the relief an appellate court can grant. While it can reverse an error of law, it will defer to the fact finder’s credibility determinations and the judge’s discretionary rulings.

Lommen Abdo attorneys understand these and other differences between trial practice and appeals, which is essential to presenting a persuasive argument to the court. If you would like more information, please contact Michelle Kuhl.