By Jacqueline O’Keefe and Starleigh Smith
Before coming to JDSA, I spent two years working at Division Three of the Washington State Court of Appeals in Spokane. I worked on dozens of cases, read hundreds of briefs, and listened to countless oral arguments. During this time, I learned a lot, but perhaps one of my biggest takeaways was the realization that many non-lawyers have poor understandings of what appellate courts do and what role they play in our legal system.
If you are considering appealing your case or if an opposing party is appealing a case you are involved with, it is useful to know what to expect. So, with that in mind, let’s address some common misconceptions.
An appeal is not as a do-over of your case but, rather, is a request to the appellate court to review the decisions made by a lower court. On appeal, you don’t get to produce any new evidence. Your appellate attorney will be able to identify which matters were decided incorrectly, how to present those errors to the court of appeal, and whether correction of those errors will change the outcome in your case. It’s important to understand that just because a lower court got an issue “wrong,” correction on appeal will not necessarily change the result if the error did not have a demonstrable impact on the outcome of the case.
Whether the court of appeals gives any deference to the trial court’s decision depends on the type of decision you are asking the appeals court to review. We refer to this as the “standard of review.” The Court of Appeals will evaluate each case differently depending on which standard of review applies. For instance, some issues are reviewed “de novo”, or completely anew. This type of review is used when the court is looking at how the trial court applied or interpreted the law. The classic example is when the appellate court is reviewing constitutional questions. Other trial court decisions, however, are given considerable deference. For example, in Washington, an appeals court gives complete deference to witness credibility determinations. Because different trial court decisions get reviewed differently, it is critical that you retain an appellate attorney who understands standards of review and can strategize accordingly.
Compared to the trial level, a larger portion of appellate advocacy is through written argument called “briefs”. Appellate briefs lay out each parties’ position and advocate for their respective outcomes. Usually there is one short oral argument which gives the judges an opportunity to ask the attorneys questions and gives the attorneys the opportunity to emphasize their most important points. Because of the emphasis on written advocacy, it is critical for your appellate attorney to possess strong research and writing skills.
If you are interested in appealing a case or must respond to an adverse party’s appeal, please consider reaching out to us at JDSA. We would be happy to analyze the strength of your case for appeal or develop a strategy to help get your favorable ruling upheld.
Jacqueline O’Keefe recently joined JDSA after working for two years at the Washington State Court of Appeals. Jacqueline attended Lewis & Clark Law School in Portland, Oregon. She currently represents a broad range of clients involved in civil litigation. Her legal practice primarily involves appeals, natural resource law, and general business matters
Starleigh K. Smith joined JDSA Law in 2021 after working as a prosecutor for three years in Jacksonville, Florida. Starleigh graduated from Washington and Lee University School of Law in 2018. She currently represents a broad range of clients involved in civil litigation.