Appellate Division D. Gosal & Assoc

Appeals: Appellate Advocacy for Criminal and Civil Litigation

Appellate law (The Law of Appeals) begins where most other litigation ends. There are no cross examinations or depositions. The appellate record is limited to what was presented to the trial court. Depending on the level of appeal, an appeal will generally be presented to a multi-judge appellate panel and is decided almost entirely on the written briefs. The procedural and strategic issues on an appeal are quite different than the issues involved in other trial litigation.

All cases begin and end in a trial court. The case could be dismissed by the judge early in the litigation, or a final judgment could be entered after a full trial (judge or jury). Someone will lose, and someone will win.  At this point, either party (usually the loser) will appeal.

Appeals are commenced by filing a Notice of Appeal.  The party appealing is called the “Appellant,” and will gather up the Appellate Record.  The Record will consist of matters that are to be presented to the appeal judges.

Appellate courts do not retry cases.  Except in rare circumstances, new evidence is not presented.  Appellate courts review what happened in the lower court to see if the proper procedures were followed and the proper law was applied to the facts.  The nature of the review is therefore limited, and thus the issues are substantially different than those that were raised at the lower trial level.

The appellate court will usually defer to the trial court or jury’s findings on factual issues. However, the appellate court has the final word on what the Law is. On issues of law — for example, the interpretation of a statute or the Constitution (like the Charter or Bill of Rights) — the appellate court will not defer to the trial court but will instead independently decide the issue.

On an appeal after a pre-trial dismissal — for example, after a section 56 summary judgment motion or a demurrer — the appellate court will usually review from start the materials and independently decide whether the case should have been dismissed or whether it should have been allowed to go to trial. This is called a De Novo review.

On an appeal from a judgment after a trial, the appellate court will reverse the judgment only if it finds the trial court committed legal errors that were prejudicial during the trial. Examples of such legal errors include the trial court giving erroneous jury instructions, erroneously admitting or excluding evidence, and failing to follow proper procedures. If the appellate court finds such legal errors, the Court will then determine whether these errors were prejudicial. A legal error is considered prejudicial only if there is some reasonable chance that it was likely to have affected the result in the case. Thus, minor legal errors are usually not grounds for a reversal.

Written Submissions

In a typical case, the parties will file a number of written briefs in court.

The appellant begins with an opening brief. The appellant’s opening brief should explain the facts and procedural history of the case, and then explain why the appellate court should reverse.

The non-appealing party — usually called the “appellee” or “respondent” — then files a responsive brief.  In the brief, the appellee or respondent argues why the trial court reached the right result and why the appellate court should not reverse.

Finally, the appellate can file a reply brief.  In this brief, the appellant can argue why the respondent’s claims are wrong.  However, the appellant may not make new legal argument in the reply brief; the appellate may only “reply” to the respondent.

Appellate Panel and Oral Argument

Appeals are decided by the appellate panel. Usually the appellate panel in an intermediate appellate court consists of three judges chosen randomly from the pool of available appellate judges on the courts.  The BC Court of Appeal can also sit five justices on rare occasions.  In appeals to state supreme courts and the U.S. Supreme Court, the entire court usually hears the appeal.  State supreme courts typically have 7 justices, and the U.S. Supreme Court has 9 justices.

Once the briefing is completed, the appellate court will hear oral argument. The time between the close of briefing and oral argument varies tremendously between different courts.

The oral argument is typically 20 – 30 minutes at the most, and is often less than 10 minutes. By the time of oral argument, the judges on most appellate courts will have read the briefs and thoroughly considered the issues.

At the close of oral argument the case is submitted to the appellate court for a decision.

Decision

The appellate panel will usually issue a written opinion explaining why it reached the decision that it did. Like the time between briefing and oral argument, the time between oral argument and the written decision varies considerably between different courts.

If the appellate court deems it appropriate, the written opinion will be published in the official reports and will be binding authority for litigants in the future.

Review by a Higher Court

A party who is dissatisfied with the results on appeal can petition a higher appellate court to review the case. In Washington State, this would be the Washington State Supreme court (from an appeal of the Washington Court of Appeals, Division I, II, or III).  In the federal system, it is the 9th Circuit Court of Appeals for Washington State, and also the U.S. Supreme Court. (If a federal issue is involved, the U.S. Supreme Court can take cases from the state appellate courts.) Depending on the matter, the Supreme Court of Canada can hear some appeals from the provincial or territorial appellate courts.

With a few exceptions (like death penalty Petitions), the state supreme courts and the US Supreme Court are not required to take any particular case; they choose what cases they will decide.  There is a large degree of discretion in determining what cases are granted leave.  Consequently, the petition asking the higher court to take review must be carefully drafted.

Interlocutory Appeals and Appellate Writs

As discussed above, most appeals involve cases that have been concluded in the trial court. However, a party can sometimes take an appeal from a trial court order before the case is over. Such appeals are called interlocutory appeals. Similarly, a party can sometimes ask an appellate court to issue an order — called a Writ — requiring the trial court to modify one of its orders. The circumstances in which a party can file an interlocutory appeal or a petition for an appellate Writ vary from court to court and are often very technical.

Criminal

Appeals may be had for sentence, conviction or interlocutory appeals (interim applications). You may also need a lawyer if the Crown or State is appealing sentence or conviction (appeals on conviction rarely occur in the US because of stronger double jeopardy laws). Appeals can be for Summary and Indictable matters and for all misdemeanors and felonies.

Civil

Appeals of Provincial Court civil orders and of Supreme Court orders in Law or Equity.