• Civil Appellate Law
  • What Is an Appeal?
  • Requirements for Appealing a Decision
    • Finality
    • Timeliness
  • Scope of Review
    • Appellate Decision
  • Appeals Courts and Appellate Procedure
    • Federal Appellate Structure
    • Texas' Appellate Structure

After a decision is rendered in a civil case by a trial judge or jury, the party who "loses" has the right to have the decision reviewed by a higher court. This process, known as the appeals process or appellate process, is the subject of this chapter. Court proceedings prior to appeal are outlined in the Process of a Lawsuit Chapter. The court system in general is covered in the chapter entitled Texas' Legal & Judicial System.

Appellate courts are set up just to make appellate decisions. So, too, many lawyers practice only appellate law. One reason for this legal specialty is that arguing an appeal is quite different from representing a party in a trial.

A party who disagrees with a judge's or jury's decision should seek the advice of an appellate lawyer regarding the prospects of a better outcome on appeal. A party served with a notice that the opposing party is appealing the decision likewise should contact an appellate attorney.

Appeal is the term used to describe the process by which a higher court reviews the decision of a lower (trial) court. The right to appeal an adverse legal decision is granted by the United States Constitution and the Texas Constitution. This appeals system provides a check on the power of a judge or jury. Judges who interpret the law erroneously will have their decisions overturned by a court with authority to do so. Judges know that their governance over every case may be checked by an appellate court.

Some appeals are granted only at the discretion of the appellate court. The United States Supreme Court, because it cannot review every single case decided in the federal system, hears appeals only at its discretion.

A party who has had an adverse court decision made against him or her is the party with the right to appeal. (Only under very rare circumstances can a party appeal a favorable decision on the ground that he or she disagrees with the reasoning of the decision.) The party who appeals is known as the appellant. In opposition to the appellant is the appellee, the party who agrees with the outcome of the trial and will argue during the appeal that the judge's or jury's decision should be left alone.

A party in a lawsuit who wishes to appeal an adverse decision may not do so until the trial court has made its final decision. If the lower court has not yet rendered its final decision, the appeal is not appropriate. It would be confusing and inefficient for everyone involved if a higher court were to step in and give its input into the proceedings in the lower court while they are still going on. After a lower court renders its final decision, there is a small window of time during which the party may file the appeal.

Finality

Not every determination made by a judge is appealable. With few exceptions, only final judgments, decisions that conclude the case in that court once and for all, are appealable. If a particular decision was not final, it is not time for an appeal.

Throughout the course of any civil trial, the trial judge may make numerous decisions. The judge may rule on a motion to limit the scope of questions that may be asked in a deposition, or may grant or deny a request that the case be dismissed on the ground that there is insufficient evidence of wrongdoing. Any court order that does not complete the case is not considered a final order. For example, if the judge denies a motion to dismiss, the proceedings will continue and the order denying the motion is considered an interim order or interlocutory order, not a final order. Generally, interim or interlocutory orders are not appealable. On the other hand, if the judge grants the motion to dismiss the case, that order is final. A decision regarding the subject matter of the case has been made: sufficient grounds do not exist for the case to continue. The final decision (also called a final disposition, final judgment, or final order) disposes of the case as far as that court is concerned.

Generally, a final decision is made after a hearing. The judge or jury has heard all the evidence, and makes a decision. A finding that the plaintiff proved or failed to prove his or her case ends the litigation at that stage. The final order is appealable.

Timeliness

While a final decision is appealable, the right to appeal does not last forever. Parties are bound to keep things moving along by exercising the right to appeal within a reasonable length of time after the final judgment is rendered. Like a statute of limitations, every court has a rule dictating the length of time after the final judgment during which an appeal may be made. For example, in the federal system, a federal district court's final decision generally must be appealed within 30 days (or 60 days if the United States or its agent or officer is a party) or the party who wishes to appeal loses that right forever.

Sometimes, there is a question as to when the final judgment of the trial court was entered. In an employment discrimination case in which a plaintiff sought back pay and other damages, a court issued an order setting forth its findings of fact and conclusions of law and stating that judgment was for the plaintiff and against the defendant. Some months later, the court issued another order awarding back pay and a retroactive promotion. Yet another order was entered in the next month, in which the court granted the plaintiff attorney's fees and litigation expenses. A question arose about when the clock started ticking for the defendant to file a notice of appeal. Which order was the final order for purposes of appeal? The appeals court held that the last order, granting fees and expenses, was the final judgment in the case, because it dispensed with the last of the issues raised in the plaintiff's complaint.

What an appeals court has authority to decide is limited. The appellant must outline the specific question it wants answered by the appeals court. The question may be as broad as, "Did the trial court err in deciding in favor of the plaintiff?" or it may be very specific. Usually, the appellant asks that several critical questions be answered. Historically, rather than "filing an appeal" a party was said to file a "writ of error." The writ of error was a request to a higher court to overturn the lower court's final decision based on a critical error in reasoning or, simply, because the decision was wrong.

A plaintiff who loses an age discrimination case, for instance, may file an appeal challenging the bases upon which the trial judge made his or her decision. This appeal might be structured as:

• Did the trial judge err when she ruled that the Age Discrimination in Employment Act did not apply?

• Did the trial judge err when she ruled that the plaintiff was required to show that he was replaced by a worker outside the protected age group?

• Did the trial judge err when she ruled that the plaintiff failed to establish a prima facie case?

Because appeals are structured in this way, it is sometimes said that the actions of the trial judge are on trial, not the actions of the parties to the original litigation.

In fact, the parties do not have a chance to re-litigate the case before the appeals court. The trial level offers the only opportunity for parties to submit evidence, examine and cross-examine witnesses, and argue the facts and the law of the case. The appeals court only considers whether the trial was conducted properly and whether the outcome was reached by proper application of the law to the facts. As noted above, the only question for an appeals court may be very specific, such as whether a particular document should have been submitted. But only issues that were raised originally in the trial court can be challenged at the appellate level.

The body of evidence, which includes the arguments, testimony, and objections considered in the trial court is all that may be considered by the appeals panel. This body of evidence is called the record. Every piece of evidence and every argument made by the parties' lawyers is recorded into one big document, the record, which is said to "close" once the trial is over. Once the record is closed, no more evidence can be included. Also, no more objections to evidence can be made.

At the appeals level, the court is restricted to review of the record. A party cannot offer new evidence or new objections for the appellate court to consider. The age discrimination plaintiff, for example, may not ask the appellate court to overturn the decision of the trial judge based on a new document that the trial judge never saw. The trial was the only opportunity to present the document. On the other hand, the plaintiff may argue on appeal that the judge should have allowed his coworker to testify, as long as the plaintiff made that argument in his original case. He may give the appellate court an indication of what the coworker would have said, so the court can weigh whether the exclusion of the testimony was harmful to the plaintiff's case.

The Appellate Decision

Because the appeals court only reviews the actions of the lower court_not the actions of the parties_its decision is couched in terms of whether the lower court made the right decision. The range of options for an appeals court are:

• Affirm: The appeals court may affirm the lower court's decree, judgment, or order, which is a declaration that the decision of the lower court was right and it will stand.

• Error: If the appellate court holds that the lower court's decision was erroneous, it will reverse, modify, or remand (see below). It may rule that the mistake was a harmless error, which means that even though there was an error, it did not affect the outcome of the case enough to make a difference. Maybe a particular witness should have been allowed to testify, but the testimony would have been similar to that of a witness who did take the stand and whose testimony did not carry much weight, so the jury probably would not have found the excluded testimony very compelling. Excluding the witness was harmless error.

• Modify: A final trial court decision may be affirmed by a higher court with minor modification that does not affect the substance or general findings of the decision.

• Remand: A case is remanded when it is sent back to the lower court with instructions about what the lower court should do. Usually, a remand means there were errors in the trial court's decision to such an extent that the appellate court cannot correct the errors itself. The lower court must reconsider the case based on the appellate court's instructions.

• Reverse: An appeals court decision to reverse a case is a ruling that the trial court should have reached the opposite conclusion. For example, a finding for the plaintiff should have been a finding that the defendant was not liable; or a finding for the defendant should have been a ruling that there was enough evidence to find the defendant liable. Unlike a remand, the appeals court has enough evidence in the record to make a determination to reverse. Sometimes, the appeals court reverses and remands at the same time. In this situation, the court has enough information to reverse the trial court's bottom line, its ultimate decision, but some questions (such as the amount of damages) still need to be worked out on remand.

In addition to these different options, appeals courts often hand down decisions that combine several different rulings. A court may reverse in part and affirm in part, or it may affirm a judgment as modified by the points described in its opinion.

The Federal Appellate Structure

The federal appellate system consists of 13 federal circuits, each of which has one appellate court, called a court of appeals, and the United States Supreme Court. Within each of the federal circuits are several federal district courts that serve as trial courts for issues of federal concern. Parties who are dissatisfied with the outcome of a district court case have the right to appeal to the court of appeals encompassing that district. Texas is located in the Fifth Circuit. The United States Court of Appeals for the Fifth Circuit usually sits in New Orleans. Texas has four federal district courts, in the eastern, northern, southern, and western districts. A case heard in one of these federal district courts (such as the Federal District Court for the Southern District of Texas) would be appealed to the Court of Appeals for the Fifth Circuit.

The United States Supreme Court hears some cases that are appealed "as of right." Mandatory appeals to the Supreme Court are made only in cases decided by a district court composed of three judges, chiefly in actions to enjoin legislative apportionments on constitutional grounds. Most cases reach the Court by an application process known as petitioning for certiorari. Review by the United States Supreme Court requires more than just the belief by a party that the wrong decision was made in his or her case; the case must be of important enough concern to federal law that its issues should be decided by the Court. The abortion cases heard by the Supreme Court in the last few years have defined the parameters of the states' authority to limit womens' right to abortion. Such questions of state authority are important federal questions. Similarly, if two federal courts of appeals have made conflicting decisions on the same question of law, an important federal issue is present.

Texas' Appellate Structure

In Texas, all appellate proceedings are governed by the Texas Rules of Appellate Procedure. Texas' court system has five tiers, two of which are appellate. Texas' municipal courts and justice of the peace courts are local trial-level courts of limited jurisdiction. Texas' three different county-level courts are trial-level courts, also with limited jurisdiction. County courts include constitutional county courts, county courts at law, and probate courts. The third tier of Texas' court system is made up of district-level courts. The civil and criminal district courts are considered the state trial courts of general jurisdiction. The fourth tier is made up of 14 courts of appeals, which are intermediate-level appellate courts. These intermediate appellate courts hear appeals from both the district-level and county-level courts. Finally, there is the Court of Criminal Appeals, which is the court of last resort (highest court) for criminal cases, and the Supreme Court, which is the court of last resort for civil and juvenile cases.

The right to appeal an adverse decision is granted by the Texas Constitution. In order to appeal some matters, security for costs is required by law. In these appeals, the appeal is perfected when a bond, cash deposit, or affidavit in lieu of the bond or cash has been filed or made. When security for costs is not required by law, the appellant must file a written notice of appeal with the clerk or judge. A writ of error (appeal) may be taken any time within six months after the date the final judgment is rendered.