Encyclopedia of American Law (180โVolume)
VOLUME 19: APPELLATE PROCEDURE
Notice of Appeal, Standard of Review, Briefs, Oral Argument, Supreme Court Certiorari
Introduction to Volume 19
Appellate procedure governs the process by which a party challenges a trial courtโs decision. An appeal is not a new trial. The appellate court does not hear witnesses. It does not receive new evidence. It reviews the record of what happened in the trial court and decides whether legal error occurred.
The right to appeal is statutory, not constitutional. Congress has created a system of appeals in the federal courts. The losing party may appeal as of right from a final judgment. The party may also seek permission to appeal from certain interlocutory orders.
This volume covers the entire appellate process. Part One covers the final judgment rule and its exceptions. Part Two covers the notice of appeal: the timing, the content, and the consequences of filing late. Part Three covers the standard of review: de novo, clear error, and abuse of discretion. Part Four covers the briefs: the opening brief, the answering brief, the reply brief, and the amicus brief. Part Five covers oral argument. Part Six covers the decision: the mandate, rehearing, and en banc review. Part Seven covers Supreme Court review: the certiorari process, the Rule of Four, and the Courtโs discretionary jurisdiction.
The rules are technical. The time limits are strict. A party who misses a deadline loses the right to appeal. The appellate courts enforce the rules rigorously.
PART ONE: THE FINAL JUDGMENT RULE
Chapter 1: The Rule and Its Rationale
The general rule is that a party may appeal only from a final judgment. 28 U.S.C. ยง 1291. A final judgment is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.
The final judgment rule prevents piecemeal appeals. A party may not appeal a ruling on a discovery motion, a ruling on a motion for summary judgment, or any other interlocutory order. The party must wait until the end of the case.
The rule promotes judicial economy. An appellate court should not have to hear the same case multiple times. It should hear the case once, after all issues have been resolved.
The rule also respects the role of the trial court. The trial judge manages the case. The appellate court should not interfere with the trial judgeโs decisions before the case is over.
Chapter 2: Collateral Order Doctrine
The collateral order doctrine is an exception to the final judgment rule. In Cohen v. Beneficial Industrial Loan Corp. (1949) , the Court held that an order is appealable if it:
- Conclusively determines the disputed question.
- Resolves an important issue completely separate from the merits of the action.
- Is effectively unreviewable on appeal from a final judgment.
The doctrine is narrow. It applies to orders denying qualified immunity, orders denying absolute immunity, and orders denying motions to compel arbitration. It does not apply to most discovery orders or to orders denying summary judgment.
In Will v. Hallock (2006) , the Court held that the collateral order doctrine should be โinterpreted narrowlyโ and โkept within its narrow scope.โ
Chapter 3: Rule 54(b) Certification
Rule 54(b) of the Federal Rules of Civil Procedure allows the trial court to enter final judgment on fewer than all claims or parties. The court must find that there is no just reason for delay. The court must expressly direct the entry of judgment.
Once the court enters a Rule 54(b) judgment, the order is appealable. The appellate court may hear the appeal even though other claims remain pending.
Rule 54(b) certification is discretionary. The trial court should not grant certification routinely. The court should consider whether the claim is separable from the other claims and whether delay would be prejudicial.
Chapter 4: Interlocutory Appeals โ Section 1292(b)
28 U.S.C. ยง 1292(b) permits the trial court to certify an order for immediate appeal. The court must find that:
- The order involves a controlling question of law.
- There is substantial ground for difference of opinion.
- An immediate appeal may materially advance the ultimate termination of the litigation.
The trial court certifies the order. The court of appeals has discretion to accept the appeal. The court of appeals may deny the appeal even if the trial court certified it.
Chapter 5: Mandamus
The court of appeals has the power to issue a writ of mandamus to correct a clear abuse of discretion by the district court. Mandamus is an extraordinary remedy. It is available only when the party has no other adequate remedy.
In Cheney v. United States District Court (2004) , the Court held that mandamus is appropriate only when the district court has โclearly and indisputablyโ erred and the party will suffer irreparable harm.
PART TWO: THE NOTICE OF APPEAL
Chapter 6: The Time to Appeal
The notice of appeal must be filed within 30 days after the entry of the judgment. 28 U.S.C. ยง 2107(a). If the United States is a party, the time is 60 days.
The time limit is jurisdictional. If the notice is filed late, the court of appeals must dismiss the appeal. There is no equitable exception. Bowles v. Russell (2007) .
The time begins to run from the entry of the judgment on the docket. The date of the judgeโs signature does not matter. The date the clerk enters the judgment on the docket is the date that starts the clock.
Chapter 7: Tolling of the Time to Appeal
Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that the time to appeal is tolled if a party files a timely motion:
- For judgment as a matter of law under Rule 50(b).
- To amend or make additional findings under Rule 52(b).
- For a new trial under Rule 59.
- For relief from judgment under Rule 60.
The motion must be filed within the time allowed by the civil rules. If a party files a timely motion, the time to appeal runs from the entry of the order disposing of the motion. The motion resets the clock.
Chapter 8: The Content of the Notice
Rule 3(c) of the Federal Rules of Appellate Procedure requires the notice of appeal to:
- Specify the party or parties taking the appeal.
- Identify the judgment or order being appealed.
- Name the court to which the appeal is taken.
The notice need not be formal. A letter is sufficient if it contains the required information. The notice may be amended after filing if the amendment does not prejudice the other party.
The rule is liberal. In Torres v. Oakland Scavenger Co. (1988) , the Court held that a notice of appeal that failed to name the appellant was sufficient if the appellant was otherwise identifiable.
Chapter 9: The Effect of the Notice
Filing the notice of appeal divests the district court of jurisdiction over the matters appealed. The district court may not modify the judgment or take further action inconsistent with the appeal. The district court may proceed with matters not involved in the appeal. The district court may also enforce the judgment that is not stayed.
PART THREE: THE STANDARD OF REVIEW
Chapter 10: De Novo Review
De novo review is the most searching standard. The appellate court gives no deference to the trial courtโs decision. The court decides the issue as if it were deciding it in the first instance.
De novo review applies to:
- Questions of law.
- The interpretation of statutes.
- The interpretation of the Constitution.
- The interpretation of the Federal Rules of Civil Procedure.
- The application of law to undisputed facts.
In Bose Corp. v. Consumers Union of United States, Inc. (1984) , the Court held that the appellate court must review de novo the determination of actual malice in a defamation case. The First Amendment requires independent appellate review.
Chapter 11: Clear Error Review
Rule 52(a)(6) of the Federal Rules of Civil Procedure provides that the appellate court may not set aside a finding of fact unless it is clearly erroneous. A finding is clearly erroneous if the appellate court is left with the definite and firm conviction that a mistake has been made.
The standard is deferential. The trial judge sees the witnesses and hears their testimony. The trial judge is better positioned to assess credibility. The appellate court reviews only the cold record.
In Anderson v. Bessemer City (1985) , the Court held that a finding of fact may not be set aside even if the appellate court would have decided the issue differently. The finding must be plausible in light of the whole record.
Chapter 12: Abuse of Discretion Review
The abuse of discretion standard applies to decisions that are committed to the trial courtโs discretion. These include:
- Discovery rulings.
- Evidentiary rulings.
- The grant or denial of a new trial.
- The grant or denial of a preliminary injunction.
- The award of attorneysโ fees.
The appellate court will reverse only if the trial court made a clear error of judgment or applied the wrong legal standard. The trial court has broad latitude. The appellate court will not substitute its own judgment.
Chapter 13: Mixed Questions of Law and Fact
Mixed questions of law and fact receive different treatment depending on the nature of the question. If the question is primarily legalโthe application of a legal standard to undisputed factsโreview is de novo. If the question is primarily factualโthe determination of what happenedโreview is for clear error.
In PullmanโStandard v. Swint (1982) , the Court held that the question of whether an employer discriminated on the basis of race is a question of fact. The appellate court reviews the trial courtโs finding for clear error.
PART FOUR: THE BRIEFS
Chapter 14: The Opening Brief
Rule 28 of the Federal Rules of Appellate Procedure requires the appellant to file an opening brief. The brief must contain:
- A table of contents and a table of authorities.
- A statement of the jurisdictional basis for the appeal.
- A statement of the issues presented.
- A statement of the case.
- A summary of the argument.
- The argument.
- A short conclusion stating the relief sought.
The argument must contain the appellantโs contentions and the reasons for them. The argument must cite the record. The argument must cite legal authority.
The brief is limited to 13,000 words or 30 pages. Rule 32(a)(7). The word count includes footnotes. It does not include the table of contents, the table of authorities, or the signature block.
Chapter 15: The Answering Brief
The appellee files an answering brief. The answering brief must comply with the same length limits. It must respond to the appellantโs arguments. It may also raise alternative grounds for affirmance.
The appellee may not raise new issues on appeal. The appellee may only defend the judgment. If the appellee wants to challenge the judgment, the appellee must file a crossโappeal.
Chapter 16: The Reply Brief
The appellant may file a reply brief. The reply brief is limited to 6,500 words or 15 pages. The reply brief may only respond to the appelleeโs arguments. It may not raise new issues.
Chapter 17: Amicus Curiae Briefs
A nonโparty may file an amicus curiae brief with the courtโs permission. Rule 29. The amicus brief is filed by a person who is not a party but has a strong interest in the case.
Most amicus briefs are filed in the Supreme Court. They are less common in the courts of appeals. The amicus brief must be filed within 7 days of the partyโs brief.
Chapter 18: Record on Appeal
The record on appeal consists of the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries. The appellant must order the transcript. The appellant must file a designation of the record.
The appellant may also file an appendix. The appendix contains the relevant portions of the record. Rule 30. The appendix is optional. Many courts require it.
The appellate court ordinarily considers only the record that was before the district court. The court will not consider new evidence.
Chapter 19: Preservation of Error
A party may not raise an issue on appeal unless the party raised it in the trial court. The party must have made a timely objection or motion. The trial court must have had an opportunity to rule on the issue.
The rule prevents sandbagging. A party should not sit silently while the trial court makes an error and then complain on appeal.
There are exceptions. A party may raise plain error on appeal. Plain error is error that is obvious and affects substantial rights. The plain error exception is used sparingly.
PART FIVE: ORAL ARGUMENT
Chapter 20: The Right to Oral Argument
Rule 34 of the Federal Rules of Appellate Procedure provides that a party is entitled to oral argument unless the court decides that argument is not needed. The court may decide a case without oral argument if:
- The appeal is frivolous.
- The dispositive issue has been authoritatively decided.
- The facts and legal arguments are adequately presented in the briefs.
Oral argument is limited to 15 or 20 minutes per side. The court may extend the time. The court may cut the time short.
Chapter 21: The Structure of Oral Argument
The appellant argues first. The appellant may reserve time for rebuttal. The appellee argues second. The appellant may argue again in rebuttal.
The judges ask questions. The advocates must answer the questions directly. The judges may interrupt at any time. The advocates must not read a prepared script. They must be prepared to respond to the judgesโ concerns.
The best oral advocates are flexible. They know the record. They know the law. They can answer any question.
Chapter 22: Moot Court
Most appellate advocates practice before the argument. Moot court is a practice argument before a panel of other lawyers. The practice panel asks difficult questions. The advocate learns which arguments are weak. The advocate learns which questions the judges are likely to ask.
PART SIX: THE DECISION
Chapter 23: The Mandate
After the court of appeals issues its decision, the clerk issues a mandate. The mandate is the formal document that returns jurisdiction to the district court. The mandate issues 7 days after the decision, unless a party files a petition for rehearing.
The district court must follow the mandate. The district court may not reconsider issues that were decided on appeal. The district court may take further proceedings consistent with the mandate.
Chapter 24: Rehearing
A party may petition for rehearing. Rule 40. The petition must be filed within 14 days of the decision. The petition must state the points of law or fact that the court overlooked.
Rehearing is rarely granted. The court may grant rehearing to correct a clear error. The court may also grant rehearing en banc.
Chapter 25: En Banc Review
A party may petition for rehearing en banc. Rule 35. En banc review means the entire court of appeals hears the case, not just a panel of three judges.
En banc review is reserved for cases of exceptional importance. The question must be one of exceptional importance. The decision must conflict with a decision of another circuit.
The court may order en banc review on its own motion. Most en banc petitions are denied.
PART SEVEN: SUPREME COURT REVIEW
Chapter 26: The Certiorari Process
The Supreme Court has discretionary jurisdiction. The Court hears only cases that it chooses to hear. The party seeking review files a petition for a writ of certiorari.
The petition must set forth the questions presented. The petition must state why the Court should grant review. The petition is limited to 5,000 words. Rule 33.1(b) of the Rules of the Supreme Court.
The opposing party files a brief in opposition. The petitioner may file a reply.
Chapter 27: The Rule of Four
The Court grants certiorari when at least four Justices vote to grant. The Rule of Four ensures that a minority of the Court can bring a case before the full Court.
The Court grants certiorari in about 1 percent of cases. The Court hears about 70 to 80 cases per year.
Chapter 28: Factors for Certiorari
Rule 10 of the Rules of the Supreme Court lists the factors that influence the Courtโs decision. The Court will grant certiorari when:
- A circuit court has decided an important question of federal law in a way that conflicts with another circuit.
- A circuit court has decided an important question of federal law in a way that conflicts with the Supreme Court.
- A circuit court has decided an important question of federal law that the Supreme Court has not yet decided.
- A circuit court has so far departed from the accepted and usual course of proceedings that the Court should intervene.
The Court is most likely to grant certiorari when there is a circuit split. A circuit split exists when different courts of appeals have decided the same legal question differently.
Chapter 29: The Supreme Courtโs Docket
The Supreme Courtโs term begins on the first Monday in October. The Court hears arguments from October through April. The Court issues decisions before the summer recess.
The Court may also issue summary dispositions. A summary disposition is a decision without full briefing and argument. The Court uses summary dispositions to correct clear errors in lower court decisions.
Chapter 30: Merits Briefing and Argument
If the Court grants certiorari, the parties file merits briefs. The petitioner files an opening brief. The respondent files an answering brief. The petitioner files a reply brief. Amicus curiae briefs are common.
Oral argument in the Supreme Court is limited to one hour per case. The time is divided equally between the parties. The Justices ask questions. The advocates must be prepared to answer.
Chapter 31: The Supreme Courtโs Decision
The Supreme Court issues a written opinion. The opinion may be unanimous or divided. The Court may also issue a per curiam opinion. A per curiam opinion is unsigned. It is issued by the Court as a whole.
The Court may affirm the lower courtโs decision. The Court may reverse it. The Court may remand the case for further proceedings.
APPENDIX 1: GLOSSARY
Abuse of discretion โ The standard of review for discretionary decisions. The appellate court reverses only if the trial court made a clear error of judgment.
Answering brief โ The brief filed by the appellee responding to the appellantโs arguments.
Certiorari โ A writ from the Supreme Court to review a decision of a lower court. The Court grants certiorari in about 1 percent of cases.
Circuit split โ A disagreement among the courts of appeals on a question of federal law. A circuit split increases the likelihood that the Supreme Court will grant certiorari.
Clear error โ The standard of review for factual findings. The appellate court reverses only if it is left with a definite and firm conviction that a mistake has been made.
Collateral order doctrine โ An exception to the final judgment rule. An order is appealable if it conclusively determines an important issue separate from the merits that would otherwise be unreviewable.
De novo โ The standard of review for questions of law. The appellate court gives no deference to the trial courtโs decision.
En banc โ A proceeding in which all of the judges of a court of appeals hear a case, rather than a panel of three judges.
Final judgment rule โ The rule that a party may appeal only from a final judgment that ends the litigation on the merits.
Interlocutory appeal โ An appeal from an order that is not a final judgment. Permitted only in limited circumstances.
Mandamus โ A writ from the court of appeals compelling a district judge to take a specific action. An extraordinary remedy.
Mandate โ The formal document that returns jurisdiction to the district court after an appeal.
Notice of appeal โ The document that a party files to initiate an appeal. Must be filed within 30 days of the judgment.
Opening brief โ The brief filed by the appellant stating the issues and the argument.
Plain error โ An error that is obvious and affects substantial rights. A party may raise plain error on appeal even if the party did not preserve the error in the trial court.
Reply brief โ The brief filed by the appellant responding to the appelleeโs arguments.
Rule of Four โ The rule that the Supreme Court grants certiorari when at least four Justices vote to grant.
Standard of review โ The degree of deference that the appellate court gives to the trial courtโs decision.
APPENDIX 2: SELECT BIBLIOGRAPHY
Breyer, Stephen G. โThe Supreme Court and the New Federal Rules of Appellate Procedure.โ Harvard Law Review 92 (1979): 915.
Clermont, Kevin M. Civil Procedure. 11th ed. West Academic, 2021 (Chapter 12 โ Appellate Review).
Friedenthal, Jack H., Mary Kay Kane, and Arthur R. Miller. Civil Procedure. 5th ed. West Academic, 2015.
Ginsburg, Ruth Bader, and Peter W. Huber. โThe Certiorari Process: A Study of the Supreme Courtโs Docket.โ Columbia Law Review 85 (1985): 1.
Hellman, Arthur D. โThe Supreme Court and the Circuit Courts: A Study of the Judicial Conference of the United States.โ Judicature 66 (1983): 22.
Issacharoff, Samuel. Civil Procedure. 4th ed. Foundation Press, 2019.
Marcus, Richard L., Martin H. Redish, and Edward F. Sherman. Civil Procedure: A Modern Approach. 7th ed. West Academic, 2017.
Mullenix, Linda S., Martin H. Redish, and Georgene M. Vairo. Understanding Civil Procedure. 6th ed. LexisNexis, 2017.
Rowe, Thomas D., Jr., Suzanna Sherry, and Jay Tidmarsh. Civil Procedure. 4th ed. Foundation Press, 2020.
Scalia, Antonin. โThe Doctrine of Standing as an Essential Element of the Separation of Powers.โ Suffolk University Law Review 17 (1983): 881.
Stern, Robert L., Eugene Gressman, and Stephen M. Shapiro. Supreme Court Practice. 11th ed. Bloomberg Law, 2019.
Subrin, Stephen N., Martha L. Minow, Mark S. Brodin, and Thomas O. Main. Civil Procedure: Doctrine, Practice, and Context. 6th ed. Wolters Kluwer, 2020.
Wright, Charles Alan, Arthur R. Miller, and Mary Kay Kane. Federal Practice and Procedure. West Academic (multiple volumes).
Yeazell, Stephen C., and Joanna C. Schwartz. Civil Procedure. 10th ed. Wolters Kluwer, 2019.
Volume 18: Federal Rules of Evidence II
Volume 20: Habeas Corpus and PostโConviction Relief
