Appeals

Attorney, Gary Michael Smith, personally handles all appellate work at Smith & Craven. He represents parties at every level of appeal, ranging from lower court appeals from administrative agencies and Arizona Justice Courts, to appeals arising from Superior Court and taken before the Arizona Court of Appeals or Arizona Supreme Court.

Gary also has the distinction of being the first attorney in Arizona legal history to have published a hyperlinked appellate brief, which he did in September 1998.  Click on the Notice of Publication, to see Arizona’s first ever hyperlinked appellate brief. 

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The following describes some of the issues that arise in appeals, and the appellate process:

All cases begin in a trial court or before an administrative agency. The case could be dismissed by the judge early in the litigation, or a final judgment could be entered after a full trial, or the judge could have made a controversial decision during the course of proceedings. Any of these moments could give rise to an appeal. In most instances, a party desiring to appeal waits until the case has been fully concluded. But, in certain special circumstances, the parties can appeal even while their case is still waiting final decision. The winner or loser can file an appeal.

An appeal typically begins with filing a notice of appeal in the trial court. The party appealing — known as the “appellant” — must also designate an appellate record. The appellate record consists of materials from the trial court that the appellant would like to present to the appellate court and use in appeal.

 

Standards of Appellate Review

Appellate courts do not retry cases or hear new evidence. Instead, appellate courts review what occurred in the trial court to see if the proper procedures were followed and the proper law was applied. Because of the limited nature of this review, the issues properly raised on appeal are significantly different from those that are raised at trial.

The appellate court will usually defer to the trial court or jury on factual issues. However, the appellate court has the final word on what the law is. On issues of law — for example, the interpretation of a statute or the Constitution — the appellate court will not defer to the trial court but will instead independently decide the issue.

Briefing

In a typical case, the parties will file a total of three briefs with the court. The appellant begins with an opening brief. The appellant’s opening brief should explain the facts and procedural history of the case, and then explain why the appellate court should reverse. The non-appealing party — usually called the “appellee” or “respondent” — then files a responsive brief. In the brief, the appellee or respondent argues why the trial court reached the right result and why the appellate court should not reverse. Finally, the appellant can file a reply brief. In this brief, the appellant can argue why the respondent’s claims are wrong. However, the appellant may not make new legal argument in the reply brief; the appellate may only “reply” to the respondent’s arguments.

 

Appellate Panel and Oral Argument

Appeals are decided by an appellate panel. Usually the appellate panel in an intermediate appellate court consists of three judges chosen randomly from the pool of available appellate judges on the courts. In appeals to the Arizona Supreme Court and the U.S. Supreme Court, the entire court usually hears the appeal.

Once the briefing is completed, the appellate court may order oral argument. The time between the close of briefing and oral argument can be many months. The oral argument is typically 30 minutes at the most, and is often less than 10 minutes. By the time of oral argument, the judges will have read the briefs and thoroughly considered the issues. However, the court may choose to decide the appeal without the necessity of oral argument.

At the close of oral argument the case is submitted to the appellate court for a decision. Unlike the underlying trial, there are no exhibits presented or witness testimony at an appellate oral argument. Instead, the parties and court rely on the exhibits and transcripts of the testimony previously given at the trial level.

 

Decision

The appellate panel will issue a written opinion stating its decision, and oftentimes explaining why it reached the decision that it did. The time between the close of oral argument and the court’s decision can be many months.

 

Review by a Higher Court

A party who is dissatisfied with the results on appeal may have the right to petition a higher appellate court to review the case. In Arizona, the highest court is the Supreme Court. In the federal system, it is the U.S. Supreme Court. (If a federal issue is involved, the U.S. Supreme Court can take cases from the state appellate courts.)

With a few exceptions (like death penalty appeals), the Arizona Supreme Court and the U.S. Supreme Court are not required to take any particular case; they choose what cases they will decide. Consequently, the petition asking the higher court to take review must be carefully drafted.

 

Interlocutory Appeals and Appellate Writs

As discussed above, most appeals involve cases that have been concluded in the trial court. However, a party can sometimes take an appeal from a trial court order before the case is over. Such appeals are called interlocutory appeals. Similarly, a party can sometimes ask an appellate court to issue an order — called a writ — requiring the trial court to modify one of its orders. The circumstances in which a party can file an interlocutory appeal or a petition for an appellate writ vary from court to court and are often very technical.