Thinking About an Appeal: What It Is and What It Is Not

After a loss in court, many people say they want to appeal as if it meant trying the case again. It does not. An appeal is a different kind of proceeding with a narrower purpose, and understanding that early helps you decide whether one is worth pursuing.

What an appeal is

An appeal asks a higher court to review what a lower court did. The appeal court looks at whether the judge made a legal mistake that affected the outcome. It is a check on how the law was applied.

The case is reviewed by judges, usually in a panel of several, who read the written arguments from both sides and sometimes hear the lawyers speak. They then issue a decision explaining what they concluded and why.

What an appeal is not

An appeal is not a new trial. There are normally no new witnesses and no jury. The higher court does not decide again who it believes. It generally accepts the facts as they were established below and asks whether the legal rules were followed.

That is the hardest thing for many clients to hear. Disagreeing with a result is not the same as showing a legal error. A lawyer who evaluates an appeal looks for specific mistakes in the record, not just a feeling that the outcome was unfair.

The record, the briefs, and the argument

The appeal rests on the record, which is the collection of papers, transcripts, and rulings from the case below. If something was never raised or never made it into the record, it is often hard to rely on it later. That makes it important that your trial lawyer protect the record along the way.

The heart of an appeal is the written brief. Each side explains the facts, identifies the legal questions, and argues how the court should rule. A good brief is clear, organized, and honest about the difficult points. Then, in many appeals, the lawyers appear for oral argument, where the judges ask questions directly.

• The record: the papers, transcripts, and rulings from the court below
• The briefs: written arguments from each side
• Oral argument: a chance for the judges to question the lawyers
• The decision: a ruling that affirms, reverses, or sends the matter back

Which court hears the appeal

In the New York State system, appeals from trial-level courts in New York City generally go to the Appellate Division. Manhattan and the Bronx are in the First Department, and Brooklyn and Queens are in the Second Department. Each has its own rules and practices.

In the federal system, appeals from the district courts in New York, including the Southern and Eastern Districts, go to the United States Court of Appeals for the Second Circuit. Its procedures differ from the state appellate courts, and a lawyer has to be admitted there to appear.

Being appealed versus asking for an appeal

There are two sides to every appeal. If you lost, you may be the one asking for the appeal. If you won, the other side may appeal, and you will be defending the result you already have. Each position calls for different work.

The one who appeals has to show a specific error. The one who responds explains why the decision was right or why any mistake did not matter. A lawyer who has handled appeals from both positions understands both tasks. The office states that Kareem Abdo has experience with being appealed and with asking for an appeal.

Why the clock matters

Appeals run on strict deadlines set by court rules. If a deadline passes, the right to appeal can be lost no matter how strong the argument would have been. The deadlines depend on the court and on the kind of decision, and they can start running from specific events.

That is why you should speak with an appellate lawyer promptly after a decision, not after you have had time to think it over for a while. Even if you end up not appealing, you will make that choice with clear information.

A first conversation goes faster if you bring a few things with you.

• The decision or order you want to challenge
• The papers filed by both sides, as far as you have them
• The date you received the decision and how it reached you
• A short summary of what you think went wrong, in your own words

The Law Office of Kareem E. Abdo handles appellate litigation. According to the office, Kareem Abdo understands the procedural rules for appeals in the New York State Appellate Divisions and in the Second Circuit, practices in the First and Second Departments, and served as an editor on the Moot Court Board at Fordham Law School. The office also says it has contacts in the appellate industry to help present briefing to the courts it is admitted to.

If you are thinking about an appeal, or the other side has filed one, reach out as soon as you can. Call or text (212) 439-4723, which is Kareem Abdo's cellular phone, or email kareemabdolaw@gmail.com.

This article is general information, not legal advice about your situation, and reading it does not create an attorney-client relationship. This is attorney advertising.