What is the difference between appellate litigation and litigation in trial courts?

“Appellate litigation” generally refers to representing a client before an appellate court. Nearly every lawsuit or similar legal proceeding (such as an administrative hearing before a state agency) can result in appellate litigation if one side is unhappy with the result and challenges the ruling of the initial decision maker. Important differences between trials and appeals include:

THE DECISION MAKERS

At the trial level, a single judge presides over the proceedings and, in many cases, a jury decides the facts. Appeals, on the other hand, are heard by panels of three or more judges and are determined by a majority vote. Appellate judges tend to focus more on pure questions of law and how the result in one case may impact future cases, and they are rarely persuaded by emotional arguments.

THE ROLE OF THE COURT

Perhaps the most important function of the trial court (including the jury) is to consider conflicting evidence and determine what the “true facts” are based on the evidence. Appellate courts, on the other hand, do not weigh the evidence. Instead, they review what the trial court did to determine whether the trial court made any legal mistakes.

THE PROCEDURAL RULES

Appeals are governed by strict written (and sometimes unwritten) rules. A party on appeal must (1) demonstrate that the judgment under review is one that the appellate court has authority to review; (2) point to the places in the trial court's “record” (typically a written transcript of everything that was said during trial) where the alleged mistake was made and demonstrate that the mistake was “preserved” for review by the appellate court; (3) understand what kind of review the appellate court will undertake (for example, some rulings are reviewed without any deference to the trial court, while others are reviewed only to determine whether the trial court abused its authority); and (4) comply with a myriad of deadlines and format requirements. Even the smartest lawyers who do not regularly handle appeals are prone to stumbling on one or more of these procedural hurdles.