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Appellate
courts do not retry cases. Except
in rare circumstances, new evidence is not presented.
Appellate courts review what happened in the lower court to see if
the proper procedures were followed and the proper law was applied to the
facts. The nature of the review is therefore limited, and thus the
issues are substantially different than those that were raised at the
lower trial level.
The
appellate court will usually defer to the trial court or jury’s findings
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 (like the Charter
or Bill of Rights) -- the appellate court will not defer to the trial
court but will instead independently decide the issue.
On an appeal after a pre-trial dismissal -- for example, after a section 56 summary judgment motion or a demurrer -- the appellate court will usually review from start the materials and independently decide whether the case should have been dismissed or whether it should have been allowed to go to trial. This is called a De Novo review.
On an appeal from a judgment after a trial, the appellate court will reverse the judgment only if it finds the trial court committed legal errors that were prejudicial during the trial. Examples of such legal errors include the trial court giving erroneous jury instructions, erroneously admitting or excluding evidence, and failing to follow proper procedures. If the appellate court finds such legal errors, the Court will then determine whether these errors were prejudicial. A legal error is considered prejudicial only if there is some reasonable chance that it was likely to have effected the result in the case. Thus, minor legal errors are usually not grounds for a reversal.
Written
Submissions:
In
a typical case, the parties will file a number of written briefs in 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 appellate 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.
Appellate
Panel and Oral Argument:
Appeals
are decided by the 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.
The BC Court of Appeal can also sit five justices on rare
occasions. In appeals to
state supreme courts and the U.S. Supreme Court, the entire court usually
hears the appeal. State
supreme courts typically have 7 justices, and the U.S. Supreme Court has 9
justices.
Once
the briefing is completed, the appellate court will hear oral argument.
The time between the close of briefing and oral argument varies
tremendously between different courts.
The
oral argument is typically 20 - 30 minutes at the most, and is often less
than 10 minutes. By the time of oral argument, the judges on most
appellate courts will have read the briefs and thoroughly considered the
issues.
At
the close of oral argument the case is submitted to the appellate court
for a decision.
Decision:
The
appellate panel will usually issue a written opinion explaining why it
reached the decision that it did. Like the time between briefing and oral
argument, the time between oral argument and the written decision varies
considerably between different courts.
If
the appellate court deems it appropriate, the written opinion will be
published in the official reports and will be binding authority for
litigants in the future.
Review
by a Higher Court:
A
party who is dissatisfied with the results on appeal can petition a higher
appellate court to review the case. In Washington State, this would be the
Washington State Supreme court (from an appeal of the Washington Court of
Appeals, Division I, II, or III). In
the federal system, it is the 9th Circuit Court of Appeals for
Washington State, and also the U.S. Supreme Court. (If a federal issue is
involved, the U.S. Supreme Court can take cases from the state appellate
courts.) Depending on the matter, the Supreme Court of Canada can hear
some appeals from the provincial or territorial appellate courts.
With
a few exceptions (like death penalty Petitions), the state supreme courts
and the US Supreme Court are not required to take any particular case;
they choose what cases they will decide.
There is a large degree of discretion in determining what cases are
granted leave. 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.
Criminal: Appeals may be had for Sentence, Conviction, or interlocutory appeals (interim applications). You may also need a lawyer if the Crown or State is appealing Sentence or Conviction (appeals on conviction rarely occur in the US because of stronger double jeopardy laws). Appeals can be for Summary and Indictable matters, and for all misdemeanors and felonies.
Civil: Appeals of Provincial Court civil orders, and of Supreme Court orders in Law or Equity.
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