Appeal
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In [[law]], an '''appeal''' is a process for requesting a formal change to an official decision.
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.
An [[appellate court]] is a [[court]] that hears cases on appeal from another court. 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. These grounds typically could include errors of [[law]], [[fact]], or procedure (in the United States, [[due process]]).
In different jurisdictions, appellate courts are also called appeals courts, courts of appeals, superior courts, or supreme courts.
==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 [[lawsuit|claim]] in a [[lower court]] decision, is appealing to a higher court to have their case reconsidered. 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. 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,<!-- what court/country? English Court of Queen's Bench--> 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 (law)|judgment]] was in its favor. The appellee is required to respond to the [[petition]], [[oral argument]]s, and [[legal brief]]s of the appellant. In general, the appellee takes the procedural posture that the lower court's decision should be [[affirm]]ed.
==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 (law)|equity]], or other civil matters either party to a previous case may file an appeal. 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. 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.<ref>{{cite web|url=http://www.lawreform.ie/publications/data/lrc119/lrc_119.html|title=Consultation Paper on Prosecution Appeals Brought in Cases of Indictment|publisher=Law Reform Commission of Ireland}}</ref>
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 [[United States Courts of Appeals|circuit courts of appeals]], and are re-ordered only if the appeal reaches the [[United States Supreme Court]].
==Direct or collateral==
Many jurisdictions recognize two types of appeals, particularly in the [[criminal]] context.<ref>{{cite web|accessdate=2008-03-03|url=http://www.leeds.ac.uk/law/hamlyn/postconv.htm|title=UK Law Online |publisher=University of Leeds }}</ref><ref>{{cite web|accessdate=2008-03-03|url=http://uscode.house.gov/download/pls/28C154.txt|title=Special Habeas Corpus Procedures in Capital Cases |publisher=United States Office of the Law Revision Counsel }}</ref><ref>{{cite web|accessdate=2008-03-03|url=http://www.twelfth.courts.state.oh.us/Decisions/Pre00011.doc|title=State of Ohio |publisher=Ohio 12th District Court of Appeals }}</ref> 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: [[Deposition (law)|depositions]], [[affidavits]], and witness statements that did not come in at trial. 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 punishment|capital]] or violent [[felony]] cases. The typical scenario involves an incarcerated defendant locating [[DNA]] evidence demonstrating the defendant's actual innocence.
==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 (law)|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 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.
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]].
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 [[United States|U.S.]] term ''affirmed''; and the phrase ''appeal allowed'' is equivalent to the U.S. term ''reversed''.
Generally, there is no [[Jury trial|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 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 [[lawyer]]s, if represented, or ''[[pro se]]'' if the party has not engaged legal representation. Those arguments are presented in written [[brief (law)|briefs]] and sometimes in [[oral argument]] to the court at a [[hearing (law)|hearing]]. 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. 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.
==United States==
{{See also|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.
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 (law)|trial]]. 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 such a proceeding, all issues and [[evidence (law)|evidence]] may be developed newly, as though never heard before, and one is not restricted to the evidence heard in the lower proceeding. 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 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. 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. 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. 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 [[Constitutionality|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. 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."
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 [[Court clerk|clerk]] of the trial court, constitutes the final judgment on the case, unless the appeal court has directed further proceedings in the trial court. The mandate is distinguished from the appeal court's [[court opinion|opinion]], which sets out the legal reasoning for its decision. 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 [[court]]s with appellate [[jurisdiction]] take jurisdiction of matters decided by lower courts. 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).
In most jurisdictions the normal and preferred way of seeking appellate review is by filing an [[appeal]] of the final [[judgment]]. 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 order]]s, 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.
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 [[United States federal courts|Federal courts]]. 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. There is no corresponding right to a writ in any pure or continental [[civil law (legal system)|civil law]] legal systems, though some mixed system such as [[Civil Code of Quebec|Quebec]] recognize these prerogative writs.
==See also==
* [[Appellate court]]
* [[Appellee]]
* [[Civil procedure]]
* [[Court of Appeal of England and Wales]]
* [[Court of Appeals (disambiguation)|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==
{{reflist}}
[[Category:Lawsuits]]
[[Category:Court systems]]
[[Category:Appellate review]]
[[Category:legal procedure]]
[[cs:Apelační soud]]
[[de:Berufung (Recht)]]
[[es:Apelación]]
[[eo:Apelacio]]
[[fr:Appel (justice française)]]
[[id:Banding]]
[[it:Appello]]
[[he:ערעור]]
[[nl:Hoger beroep]]
[[ja:抗告]]
[[no:Anke]]
[[pl:Apelacja (prawo)]]
[[ro:Apel (Justiţie)]]
[[ru:Апелляция]]
[[sr:Апелациони суд]]
[[sv:Appellationsdomstol]]
[[th:ศาลอุทธรณ์]]
[[tr:Temyiz]]
[[uk:Апеляція]]