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Appellate procedure consists of the rules and practices by which appellate courts review trial court judgments.  Federal appellate courts are governed by the Federal Rules of Appellate Procedure.  State appellate courts are governed by their own state rules of appellate procedure.

Appellate procedure centers on various matters such as  what judgments are appealable, how appeals are brought before the court, what will be required for a reversal of the lower court and what procedures parties must follow.  Appealable issues are commonly limited to final judgments.  However, there are exceptions to the “final judgment rule.”  Some of the exceptions are instances of plain or fundamental error by the trial court, questions of subject-matter jurisdiction of the trial court, or constitutional questions.

The party appealing is called the appellee or the petitioner and the opposite party is called the respondent.  The appeal is instituted with the filing of a notice of appeal.  Within a stipulated time, the appellant shall file a brief, a written argument stating the facts and legal argument upon which the appellant relies in seeking a reversal of lower court decision.  Then the appellee shall file the answering brief within the time limit.  The appellant can file a second brief answering the appellee’s brief. 

Argument in appellate court centers around these written briefs prepared by the parties.  Only a few jurisdictions allow for oral argument as a matter of course.  Oral argument is intended to clarify legal issues presented in the briefs.  Usually, oral arguments are subjected to a time limit extended only upon the discretion of the court.  In the U.S. Supreme Court, for example, an hour is set for oral argument of most cases, which gives each side’s lawyers about half an hour to make their oral argument and answer questions.  In the federal courts of appeals, the attorneys are often allotted 10- or 15 minutes for oral arguments.

Once the case is presented for judgment, the appeal court judges will meet in conference to discuss the case.  At the conference, one judge will be designated to write an opinion.  Several drafts of opinion are made before a majority of the court agrees with it.  Judges who disagree with the majority opinion may issue a dissenting opinion.  Judges agreeing with the result of a majority decision but disagreeing with the majority’s reasoning may file a concurring opinion.  The appeals court affirms, reverses, remands or dismisses the lower court’s judgment.

Inside Appeals