In law, an appeal is a process for requesting a formal change to an official decision. Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society

The specific procedures for appealing, including even whether there is a right of appeal from a particular type of decision, can vary greatly from country to country. Even within a jurisdiction, the nature of an appeal can vary greatly depending on the type of case. In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority

An appellate court is a court that hears cases on appeal from another court. Court of Appeal, Court of Appeals, and Appellate Division redirect here for a list of specific courts using those titles see Court of Appeal A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its Depending on the particular legal rules that apply to each circumstance, a party to a court case who is unhappy with the result might be able to challenge that result in an appellate court on specific grounds. A legal case is a dispute between opposing parties resolved by a Court, or by some equivalent legal process These grounds typically could include errors of law, fact, or procedure (in the United States, due process). Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society Generally a fact is defined as something that is true something that actually exists or something that can be verified according to an established standard of evaluation Due process (more fully due process of law) is the principle that a person has a right to receive notice and be heard in an orderly proceeding in order to protect his or her

In different jurisdictions, appellate courts are also called appeals courts, courts of appeals, superior courts, or supreme courts.

Contents 1 Who can appeal 2 Ability to appeal 3 Direct or collateral 4 Notice of appeal 5 How an appeal is processed 6 United States 7 Appellate review 8 See also 9 References

Who can appeal

A party who files an appeal is called an appellant or petitioner, and a party on the other side is called a respondent (in most common-law countries) or an appellee (in the United States). A cross-appeal is an appeal brought by the respondent. For example, suppose at trial the judge found for the plaintiff and ordered the defendant to pay $50,000. If the defendant files an appeal arguing that he should not have to pay any money, then the plaintiff might file a cross-appeal arguing that the defendant should have to pay $200,000 instead of $50,000.

The appellant is the party who, having lost part or all their claim in a lower court decision, is appealing to a higher court to have their case reconsidered. In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy This is usually done on the basis that the lower court judge erred in the application of law, but it may also be possible to appeal on the basis of court misconduct, or that a finding of fact was entirely unreasonable to make on the evidence.

The appellant in the new case can be either the plaintiff (or claimant), defendant, or respondent (appellee) from the lower case, depending on who was the losing party. A plaintiff ( Π in Legal shorthand) also known as a claimant or complainant, is the party who initiates a Lawsuit A defendant or defender ( Δ in Legal shorthand) is any party who is required to answer the Complaint of a Plaintiff The winning party from the lower court, however, is now the respondent. In unusual cases the appellant can be the victor in the court below, but still appeal. For example, in Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158, the claimant appealed (successfully) on the basis that, although he won in the court below, the lower court had applied the wrong measure of damages and he had not been fully recompensed.

An appellee is the party to an appeal in which the lower court judgment was in its favor. A judgment (see spelling note below in a Legal context is synonymous with the formal decision made by a Court following a Lawsuit. The appellee is required to respond to the petition, oral arguments, and legal briefs of the appellant. A petition is a request to change some thing most commonly made to a government official or public entity Oral arguments are spoken presentations to a Judge or Appellate court by a Lawyer (or parties when representing themselves of the legal reasons A brief (Latin " brevis " short or factum (Latin for "act" or "deed" is a written legal document used in various legal In general, the appellee takes the procedural posture that the lower court's decision should be affirmed.

Ability to appeal

An appeal as of right is one that is guaranteed by statute or some underlying constitutional or legal principle. The appellate court cannot refuse to listen to the appeal. An appeal by leave or permission requires the appellant to move for leave to appeal; in such a situation either or both of the lower court and the appellate court may have the discretion to grant or refuse the appellant's demand to appeal the lower court's decision.

In tort, equity, or other civil matters either party to a previous case may file an appeal. Tort law is the name given to a body of law that creates and provides remedies for civil wrongs that do not arise out of Contractual duties Equity is the name given to the set of legal principles in jurisdictions following the English common law tradition which supplement strict rules of law where In criminal matters, however, the state or prosecution generally has no appeal as of right. And due to the double jeopardy principle, in the United States the state or prosecution may never appeal a jury or bench verdict. Double jeopardy (non bis in idem is a Procedural defense (and in many countries such as the United States, Canada, Mexico and India But in some jurisdictions, the state or prosecution may appeal as of right from a trial court's dismissal of an indictment in whole or in part or from a trial court's granting of a defendant's suppression motion. Likewise, in some jurisdictions, the state or prosecution may appeal an issue of law by leave from the trial court and/or the appellate court. The ability of the prosecution to appeal a decision in favor of a defendant varies significantly internationally. ^[1]

By convention in some law reports, the appellant is named first. This can mean that where it is the defendant who appeals, the name of the case in the law reports reverses (in some cases twice) as the appeals work their way up the court hierarchy. This is not always true, however. In the United States federal courts, the parties names always stay in the same order as the lower court when an appeal is taken to the circuit courts of appeals, and are re-ordered only if the appeal reaches the United States Supreme Court. The United States federal courts are the system of Courts organized under the Constitution and laws of the Federal government of the United States The United States courts of appeals (or circuit courts) are the intermediate appellate courts The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary.

Direct or collateral

Many jurisdictions recognize two types of appeals, particularly in the criminal context. In the sociological field, crime is the breach of a rule or Law for which some governing authority or force may ultimately prescribe a Punishment ^[2][3][4] The first is the traditional "direct" appeal in which the appellant files an appeal with the next higher court of review. The second is the collateral appeal or post-conviction petition, in which the petitioner-appellant files the appeal in a court of first instance--usually the court that tried the case.

The key distinguishing factor between direct and collateral appeals is that the former only reviews evidence that was presented in the trial court, but the latter allows review of evidence dehors the record: depositions, affidavits, and witness statements that did not come in at trial. In Law, a deposition is witness testimony given under oath and recorded for use in court at a later date An affidavit is a formal sworn statement of fact, signed by the declarant (who is called the affiant or deponent) and witnessed (as to the veracity of the The standard for post-conviction relief is high, typically requiring the petitioner to demonstrate that the evidence presented was not available in the usual course of trial discovery.

Relief in post-conviction is rare and is most often found in capital or violent felony cases. In Common law legal systems a felony is a serious Crime, often contrasted with a Misdemeanor. The typical scenario involves an incarcerated defendant locating DNA evidence demonstrating the defendant's actual innocence. Deoxyribonucleic acid ( DNA) is a Nucleic acid that contains the genetic instructions used in the development and functioning of all known

Notice of appeal

A notice of appeal is a form or document that in many cases is required to begin an appeal. The form is completed by the appellant or by the appellant's legal representative. The nature of this form can vary greatly from country to country and from court to court within a country.

The specific rules of the legal system will dictate exactly how the appeal is officially begun. For example, the appellant might have to file the notice of appeal with the appellate court, or with the court from which the appeal is taken, or both.

Some courts have samples of a notice of appeal on the court's own web site.

The deadline for beginning an appeal can often be very short: traditionally, it is measured in days, not years. This can vary from country to country, as well as within a country, depending on the specific rules in force.

How an appeal is processed

Generally speaking the appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether that decision was legally sound or not. The Law of evidence governs the use of Testimony (eg oral or written statements such as an Affidavit) and exhibits (e Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society The appellate court will typically be deferential to the lower court's findings of fact (such as whether a defendant committed a particular act), unless clearly erroneous, and so will focus on the court's application of the law to those facts (such as whether the act found by the court to have occurred fits a legal definition at issue).

If the appellate court finds no defect, it "affirms" the judgment. If the appellate court does find a legal defect in the decision "below" (i. e. , in the lower court), it may "modify" the ruling to correct the defect, or it may nullify ("reverse" or "vacate") the whole decision or any part of it. It may, in addition, send the case back ("remand" or "remit") to the lower court for further proceedings to remedy the defect.

In some cases, an appellate court may review a lower court decision de novo (or completely), challenging even the lower court's findings of fact. This might be the proper standard of review, for example, if the lower court resolved the case by granting a pre-trial motion to dismiss or motion for summary judgment which is usually based only upon written submissions to the trial court and not on any trial testimony. A legal motion is a procedural device in Law to bring a limited contested matter before a Court for decision For the simplification and shortening of a longer text see Summary.

Another situation is where appeal is by way of re-hearing. Certain jurisdictions permit certain appeals to cause the trial to be heard afresh in the appellate court. An example would be an appeal from a Magistrates' court to the Crown Court in England and Wales. A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and For the TV programme see Crown Court (TV series. The Crown Court of England and Wales is together with the High Court of Justice History The Roman occupation of Britain was the first period in which the area of present-day England and Wales was administered as a single unit (with the exception

Sometimes, the appellate court finds a defect in the procedure the parties used in filing the appeal and dismisses the appeal without considering its merits, which has the same effect as affirming the judgment below. (This would happen, for example, if the appellant waited too long, under the appellate court's rules, to file the appeal. ) In England and many other jurisdictions, however, the phrase appeal dismissed is equivalent to the U.S. term affirmed; and the phrase appeal allowed is equivalent to the U. England is a Country which is part of the United Kingdom. Its inhabitants account for more than 83% of the total UK population whilst its mainland The United States of America —commonly referred to as the S. term reversed.

Generally, there is no trial in an appellate court, only consideration of the record of the evidence presented to the trial court and all the pre-trial and trial court proceedings are reviewed—unless the appeal is by way of re-hearing, new evidence will usually only be considered on appeal in very rare instances, for example if that material evidence was unavailable to a party for some very significant reason such as prosecutorial misconduct. In Jurisprudence, prosecutorial misconduct is a Procedural defense; via which a Defendant may argue that they should not be held criminally

In some systems, an appellate court will only consider the written decision of the lower court, together with any written evidence that was before that court and is relevant to the appeal. In other systems, the appellate court will normally consider the record of the lower court. In those cases the record will first be certified by the lower court.

The appellant has the opportunity to present arguments for the granting of the appeal and the appellee (or respondent) can present arguments against it. Arguments of the parties to the appeal are presented through their appellate lawyers, if represented, or pro se if the party has not engaged legal representation. A lawyer, according to Black's Law Dictionary, is "a person learned in the law as an attorney, Counsel or Solicitor; a person Those arguments are presented in written briefs and sometimes in oral argument to the court at a hearing. A brief (Latin " brevis " short or factum (Latin for "act" or "deed" is a written legal document used in various legal Oral arguments are spoken presentations to a Judge or Appellate court by a Lawyer (or parties when representing themselves of the legal reasons In law a hearing is a Proceeding before a Court or other decision-making body or officer At such hearings each party is allowed a brief presentation at which the appellate judges ask questions based on their review of the record below and the submitted briefs.

It is important to note that in an adversarial system appellate courts do not have the power to review lower court decisions unless a party appeals it. The adversarial system (or adversary system) of law is the system of law generally adopted in Common law countries that relies on the skill of each advocate Therefore if a lower court has ruled in an improper manner or against legal precedent that judgment will stand even if it might have been overturned on appeal. In Common law legal systems, a precedent or authority is a Legal case establishing a principle or rule that a Court or other judicial

United States

Main article: United States court of appeals

The United States legal system generally recognizes two types of appeals: a trial de novo or an appeal on the record. The United States courts of appeals (or circuit courts) are the intermediate appellate courts The United States of America —commonly referred to as the

A trial de novo is usually available for review of informal proceedings conducted by some minor judicial tribunals in proceedings that do not provide all the procedural attributes of a formal judicial trial. In Law, the expression trial de novo means a "new trial " by a different tribunal ( de novo is a Latin expression meaning 'afresh' 'anew' If unchallenged, these decisions have the power to settle more minor legal disputes once and for all. If a party is dissatisfied with the finding of such a tribunal, one generally has the power to request a trial de novo by a court of record. In Common law jurisdictions a court of record is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally In such a proceeding, all issues and evidence may be developed newly, as though never heard before, and one is not restricted to the evidence heard in the lower proceeding. The Law of evidence governs the use of Testimony (eg oral or written statements such as an Affidavit) and exhibits (e Sometimes, however, the decision of the lower proceeding is itself admissible as evidence, thus helping to curb frivolous appeals.

In an appeal on the record from a decision in a judicial proceeding, both appellant and respondent are bound to base their arguments wholly on the proceedings and body of evidence as they were presented in the lower tribunal. Each seeks to prove to the higher court that the result they desired was the just result. Precedent and case law figure prominently in the arguments. In Common law legal systems, a precedent or authority is a Legal case establishing a principle or rule that a Court or other judicial Case law' (also known as decisional law or judicial precedent) is that body of reported Judicial opinions in countries that have Common law In order for the appeal to succeed, the appellant must prove that the lower court committed reversible error, that is, an impermissible action by the court acted to cause a result that was unjust, and which would not have resulted had the court acted properly. In Law, a reversible error is an error by the trier of Law ( Judge) or the trier of fact (the jury or the judge if it is a Bench trial) or Some examples of reversible error would be erroneously instructing the jury on the law applicable to the case, permitting seriously improper argument by an attorney, admitting or excluding evidence improperly, acting outside the court's jurisdiction, injecting bias into the proceeding or appearing to do so, juror misconduct, etc. A jury a sworn body of persons convened to render a rational, impartial Verdict (a finding of fact on a question officially submitted to them The failure to formally object at the time, to what one views as improper action in the lower court, may result in the affirmance of the lower court's judgment on the grounds that one did not "preserve the issue for appeal" by objecting.

In cases where a judge rather than a jury decided issues of fact, an appellate court will apply an abuse of discretion standard of review. A judge, or justice, is an Official who presides over a Court of law A jury a sworn body of persons convened to render a rational, impartial Verdict (a finding of fact on a question officially submitted to them Under this standard, the appellate court gives deference to the lower court's view of the evidence, and reverses its decision only if it were a clear abuse of discretion. This is usually defined as a decision outside the bounds of reasonableness. On the other hand, the appellate court normally gives less deference to a lower court's decision on issues of law, and may reverse if it finds that the lower court applied the wrong legal standard.

In some rare cases, an appellant may successfully argue that the law under which the lower decision was rendered was unconstitutional or otherwise invalid, or may convince the higher court to order a new trial on the basis that evidence earlier sought was concealed or only recently discovered. Constitutionality is the status of a law, a procedure or an act's accordance with the laws or guidelines set forth in the applicable Constitution. In the case of new evidence, there must be a high probability that its presence or absence would have made a material difference in the trial. Another issue suitable for appeal in criminal cases is effective assistance of counsel. If a defendant has been convicted and can prove that his lawyer did not adequately handle his case and that there is a reasonable probability that the result of the trial would have been different had the lawyer given competent representation, he is entitled to a new trial.

In the United States, a lawyer traditionally starts an oral argument to any appellate court with the words "May it please the court. A lawyer, according to Black's Law Dictionary, is "a person learned in the law as an attorney, Counsel or Solicitor; a person "

After an appeal is heard, the mandate is a formal notice of a decision by a court of appeal; this notice is transmitted to the trial court and, when filed by the clerk of the trial court, constitutes the final judgment on the case, unless the appeal court has directed further proceedings in the trial court. A court clerk ( British English clerk to the court; American English clerk of the court or clerk of court) is an Officer of the The mandate is distinguished from the appeal court's opinion, which sets out the legal reasoning for its decision. An opinion is a Person 's Ideas and thoughts towards something which it is either impossible to verify the truth of or the truth of which is thought unimportant to In some U. S. jurisdictions the mandate is known as the remittitur.

Appellate review

Appellate review is the general term for the process by which courts with appellate jurisdiction take jurisdiction of matters decided by lower courts. A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority It is distinguished from judicial review, which refers to the court's overriding constitutional or statutory right to determine if a legislative act or administrative decision is defective for jurisdictional or other reasons (which may vary by jurisdiction). Judicial review is the power of the courts to annul the acts of the executive and/or the legislative power where it finds them incompatible with a higher norm

In most jurisdictions the normal and preferred way of seeking appellate review is by filing an appeal of the final judgment. In non-legal contexts a judgment is a balanced weighing up of evidence preparatory to making a decision Generally, an appeal of the judgment will also allow appeal of all other orders or rulings made by the trial court in the course of the case. This is because such orders cannot be appealed as of right. However, certain critical interlocutory court orders, such as the denial of a request for an interim injunction, or an order holding a person in contempt of court, can be appealed immediately although the case may otherwise not have been fully disposed of. A court order (or court ruling) is an official proclamation by a Judge (or panel of judges that defines the legal relationships between the parties to a hearing An injunction is an Equitable remedy in the form of a Court order, whereby a party is required to do or interact with in certain ways all right or to refrain from Contempt of court is a court ruling which in the context of a court trial or hearing deems an individual as having been disrespectful of the court its process and its invested

In American law, there are two distinct forms of appellate review, direct and collateral. For example, a criminal defendant may be convicted in state court, and lose on direct appeal to higher state appellate courts, and if unsuccessful, mount a collateral action such as filing for a writ of habeas corpus in the Federal courts. Habeas corpus (ˈheɪbiəs ˈkɔɹpəs ( Latin: command that you have the body is the name of a legal action or Writ, through which a person can seek relief The United States federal courts are the system of Courts organized under the Constitution and laws of the Federal government of the United States Generally speaking, "[d]irect appeal statutes afford defendants the opportunity to challenge the merits of a judgment and allege errors of law or fact. . . . [Collateral review], on the other hand, provide[s] an independent and civil inquiry into the validity of a conviction and sentence, and as such are generally limited to challenges to constitutional, jurisdictional, or other fundamental violations that occurred at trial. " Graham v. Borgen, __ F 3d. __ (7th Cir. 2007) (no. 04-4103) (slip op. at 7) (citation omitted).

In Anglo-American common law courts, appellate review of lower court decisions may also be obtained by filing a petition for review by prerogative writ in certain cases. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive Prerogative writs are a class of writs which originate from English law. There is no corresponding right to a writ in any pure or continental civil law legal systems, though some mixed system such as Quebec recognize these prerogative writs. Civil law or Romano-Germanic law or Continental law is the predominant system of law in the world. The Civil Code of Québec ( Code civil du Québec) is the Civil code in force in the province of Quebec, Canada.

See also

• Appellate court
• Appellee
• Civil procedure
• Court of Appeal of England and Wales
• Court of Appeals
• Criminal procedure
• Defendant
• Interlocutory appeal
• List of legal topics
• Plaintiff
• Pursuer
• Respondent
• Reversible error
• Supreme Court of the United States
• Writ of Certiorari
• Writ of habeas corpus
• Writ of mandamus

References

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