Appellate procedure consists of the rules and practices by which appellate courts review trial court judgments and orders. Appellate review performs several functions, including: the correction of errors committed by the trial court, development of the law and precedent to be followed and anticipated in future disputes, and the pursuit of justice. In reviewing errors of the lower court, the errors focused on are of a legal nature, appellate courts will usually not disturb factual findings.
Several issues are foremost in appeals, such as what judgments are appealable, how appeals are brought before the court, what will be required for a reversal of the lower court (e.g., a showing of “abuse of discretion,” “clear error,” etc.), and what procedures parties must follow.
The appellate lawyers at Jay-Allen Eisen Law Corporation have been counsel in hundreds of appeals.
The development of English Common Law relied on the courts to issue writs that allowed persons to proceed with a legal action. Over time the courts also used writs to direct lower courts or tribunals, governmental officials, sheriffs, and attorneys to perform certain actions. In modern law, courts primarily use writs to grant extraordinary relief, to grant the right of appeal, or to grant the sheriff authority to seize property. Most other common-law writs were discarded in U.S. law, as the courts moved to simpler and more general methods of starting civil actions.
The appellate lawyers at Jay-Allen Eisen Law Corporation handle writ petitions in both the superior courts and courts of appeal on a variety of issues, including land use, professional license discipline and other administrative decisions, and as a mechanism for seeking review of interlocutory trial court rulings.
Motions may be made in the form of an oral request in open court, which is then summarily granted or denied orally. But today, most motions (especially on dispositive issues that could decide the entire case) are decided after oral argument preceded by the filing and service of legal papers. That is, the movant is usually required to serve advance written notice along with some kind of written legal argument justifying the motion. The legal argument may come in the form of a memorandum of points and authorities supported by affidavits or declarations. Some northeastern U.S. states have a tradition in which the legal argument comes in the form of an affidavit from the attorney, speaking personally as himself on behalf of his client. In contrast, in most U.S. states, the memorandum is written impersonally or as if the client were speaking directly to the court, and the attorney reserves declarations of his own personal knowledge to a separate declaration or affidavit (which are then cited to in the memorandum).
Either way, the nonmovant usually has the opportunity to file and serve opposition papers. Most jurisdictions allow for time for the movant to file reply papers rebutting the points made in the opposition.
Customs vary widely as to whether oral argument is optional or mandatory once briefing in writing is complete. Some courts issue tentative rulings (after which the loser may demand oral argument) while others do not. Depending upon the type of motion and the jurisdiction, the court may simply issue an oral decision from the bench (possibly accompanied by a request to the winner to draft an order for its signature reducing the salient points to writing), take the matter under submission and draft a lengthy written decision and order, or simply fill out a standard court form with check boxes for different outcomes. The court may serve all parties directly with its decision or may serve only the winner and order the winner to serve everyone else in the case.
Known for their ability to persuasively write and orally advocate their client’s position, our appellate lawyers are often frequently on board in trial proceedings to brief and argue everything from routine discovery motions to dispositive motions such as demurrers and summary judgment motions, and often in limine motions where specific evidentiary issues may decide the outcome at trial.
We have prosecuted and defended civil appeals, writs, and motions in a
broad range of areas, including:
Civil procedure issues
Civil rights and constitutional law
Real estate litigation