All Court Proceedings are Not the Same

The last post gave a broad overview of the American appellate process. But how does this process differ from a proceeding in the court of first instance, the trial court?

At the trial level, the parties have the chance to exchange evidence, known as conducting discovery. This means that if there's an ongoing question about, say, what the parties to a contract understood a certain term to mean, they can take witness testimony to find out. And if the parties appear before a judge and the question still isn't resolved, they may have the chance to go back and find more evidence on this point.

But an appeal is different. An appellate court is bound by the scope of the record. This means that the court can review only the contents of the record, and the parties may not add new facts once the case is on appeal.

Not only are the parties restricted to the same facts as in the court below, but they're also restricted to the same arguments. That is, they may not raise new arguments on appeal. This may seem harsh—for example, if you hire new counsel for your appeal, instead of the lawyer who represented you on trial, your new attorney might see the case differently and find an additional argument to make to the appellate court. But the new attorney can't make this argument unless it was "preserved" in the record, meaning that the trial attorney raised the issue at some point, even just in passing. If the trial attorney didn't preserve the argument, your appellate counsel won't be able to raise it on appeal, however persuasive it might be.

But the reason for this apparent harshness goes back to the function of the appellate courts. Reviewing actions of the lower courts requires that the lower court had the opportunity to address an issue at all, and an appellate court cannot review a decision on an argument which was never made.

(Of course, the way to avoid having an argument precluded on appeal is by involving skilled appellate counsel from the beginning of the case. This way, you have a set of experienced eyes able to anticipate what arguments might be available, what facts you might need to prove your claim, and how to find evidence to support those facts during discovery, to create a thorough record for any potential appeal.)

This closed record also creates a rigid structure compared to trial practice. That is, while the lower court process largely involves the search for evidence to prove a claim, on appeal there's nothing more to be found. With all the evidence already before the court (at least on that particular issue), persuasive, clear, well-supported written arguments taken on exponentially more significance. Written submissions are key at any phase of a court proceeding, but on appeal they may well be the only thing a court considers.

A third difference between a lower court proceeding and appeal is the role of precedent. In a common law system, trial courts are bound by stare decisis, also called precedent or settled law. This means that, if a fact pattern arises in 2020 that hasn't been seen since 1876, the trial court would have to rule based on the 1876 outcome, no matter what legal or social changes might have come about in the meantime. In other words, trial judges are bound by what the law is, irrespective of what it should be.

An appellate court has more flexibility. Appellate courts have the authority to overrule their own precedent (but not that of a higher appellate court) and thus may be more open to arguments about a "just" outcome, rather than the outcome required by existing law.

Given the differences between trials and appeals, these proceedings also require different kinds of advocacy. Just as a trial lawyer is the best person to present your case to a jury, a lawyer experienced in appeals can present refined arguments for further review.