In the last blog post, we discussed, at a basic level, just what an appeal is. In this post, we’ll discuss the appellate process: what actually happens in an appeal from start to finish. Depending on the circumstances of a case, this can be a very complex process. For now, though, we’ll stick with the simplest case: an appeal in a civil case from a district court in Colorado to the Colorado Court of Appeals. The basic steps in an appeal are as follows:
- The district court case ends—When the district court has entered “final judgment.” With a few exceptions we won’t get into now, a party can only appeal a “final judgment” of the district court.
- The appeal is filed—Normally, the “losing” side below files a document, titled a “Notice of Appeal,” with both the Colorado Court of Appeals and the district court. The Notice of Appeal alerts the parties, and the district court, that one side is asking for review by a higher court.
- The record on appeal is created—As we discussed last week, unlike a trial court, an appellate court does not hear new evidence or listen to new witnesses. Rather, it simply reviews all of the information heard by the lower court and decides whether the trial court made a mistake.The record on appeal is a set of documents, such as transcripts, pleadings, motions, and orders sometimes less than a hundred pages, sometimes thousands of pages—that tells the court of appeals just what happened in the court below. Parties who argue to the court of appeals must “cite to the record”—that is, prove to the court of appeals that what they claim happened, actually happened.
- The parties file briefs—Briefs are the written documents the lawyers for each side file with the court of appeals to argue their case. There are usually three: an opening brief, filed by the appellant and explaining what the district court did wrong; a response brief, filed by the appellee explaining why the district court’s decision was proper, and a reply brief in which the appellant gets a chance to rebut the arguments of the appellee. Appellate briefs are the most important aspect of an appeal.
- The court hears oral argument—At oral argument, the parties get a chance to address the court of appeals in person and argue their case to the panel of judges. Depending on the size and complexity of a case, oral argument can be as short as 20 minutes (10 minutes per side) or as long as an hour (30 minutes per side). During oral argument, the parties will present their case to the court and answer any questions the judges may have.
- The court of appeals makes its decision—Unlike a trial, an appeal is heard by a panel of three (or more) judges who decide a case by majority vote. After the briefs have been submitted and oral argument is complete, the judges decide whether to affirm or reverse the trial court’s order. They then issue their opinion.
- The case is returned to the district court—Once the court of appeals reaches its decision, the case will eventually be returned to the district court. If the court of appeals affirms the district court, there is very little left to do before the case is closed. If the court of appeals reverses the district court, it will usually remand (return) the case to the district court with specific orders telling the court what it did wrong and what it needs to do to fix it.
And that’s the sketch. In the next post, we’ll talk more about what courts actually do when they hear appeals.
* The author of this blog post, Logan R. Martin, has interned at the Colorado Supreme Court, and served as a law clerk on the United States Court of Appeals for Tenth Circuit. You can contact Mr. Martin by phone at (303) 915-5002, or by email at firstname.lastname@example.org.
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