Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 6, 2012

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Once a trial court judge has entered the final judgment in a case, the losing party may file a notice of appeal. The notice of appeal operates as its name implies – it puts the winning side as well as the courts on notice that the decision is being appealed. The appealing party is referred to as the appellant in the appeals court, while the party that won at the trial level becomes the appellee.

The first step in the appeals process after the appellant files the notice of appeal is the determination of the record on appeal. Both sides are given an opportunity to add portions of the trial record to the record on appeal. Only those parts of the trial record that are certified will be used by the appeals court to decide the case. The appellant must get the clerk of the trial court to forward the necessary parts of the trial record to the appeals court. Perfecting the appeal (in other words, having it properly prepared, with attention to detail such as proper font and paper size) requires the appealing party to submit a transcript of the trial court proceedings, all attachments, and a certified copy of the docket entries to the appeals court.

It’s important to note that no more fact finding will occur at the appeals court level. Whatever facts are in the trial court record will remain there for the appeal and form the basis of the appeals court’s decision. The appeals court hears no new testimony, and only the attorneys for the parties make arguments there.

The Briefing Process for Appeals

After submitting the supporting paperwork required for appeals, including any amendments, preliminary motions, and answers, the appellant then typically files an opening brief detailing the legal reasons for overturning the lower court’s decision. The appellee, having won at the trial level, will then file an answering brief responding to the appellant’s opening brief and defending the trial court’s decision as correct. In most cases, the appellant then gets to file a final reply brief to the appellee’s answer. The appellate briefing process is complex and nearly always requires the legal skills of an experienced appeals lawyer. In addition to the difficulty of winning arguments on the appeals level, briefs can be rejected for technical errors, including improper attachments, font sizes, and no proof of service.

The arguments made in appeals briefs differ significantly from the briefs used at the trial level. A trial brief frames evidence within that side’s theory of the case, with the aim of persuading the judge of a particular view of the facts of the case. As noted above, however, at the appeals level, the facts of the case are no longer in dispute – they are what the trial court found them to be. As a result, appeals briefs must show that the trial court made an error on a point of law. Because of the highly technical nature of appeals briefs, hiring a litigation and appeals attorney to handle any appeal is imperative.

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Both Parties Can Appeal in Some Cases

In some instances, neither of the parties to a case is altogether happy with the result at the trial level. It’s possible that both parties could file an appeal to different aspects of the trial court’s decision. This might occur if the trial court finds for the plaintiff on one claim in the complaint, but for the defendant as to another claim. If both parties appeal, each will be considered an appellant as to the particular claim being appealed, and briefing on both sides will commence accordingly.