Basic Information

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An appeal is a proceeding in which a court of greater authority reviews the judgment (or certain orders) of a lower court. The judgments and orders of a lower court are frequently referred to as decisions. If one appeals a judgement (or order) the reviewing court provides only limited relief. The reviewing court may affirm the decision of the lower court. It may modify the decision. The reviewing court may reverse the decision. If the court reverses the decision, completely or even partially, the reviewing court may send the decision back to the lower court for additional proceedings such as a new trial, or an additional hearing. So, an appeal is not a “Do Over.” But, an appeal may get you a “Do Over” in the lower court.

If you think you want to appeal a decision of the trial court, first ask yourself: why? Obviously, you do not like the result. But, that is not good enough. Why is the decision wrong? If you think the decision is wrong because the court did not believe you, or if you think the decision is wrong because the court believed your lying opponent, then you have a lousy appeal. Courts of appeal do not reweigh the evidence. If the evidence could support both your winning or the other side winning, the court of appeals will not change the outcome. Rather, the appellate court will affirm the decision.

To have a good appeal requires that the judge, or the jury, did something wrong, which the court of appeals recognizes as “error.” There are three recognizable errors: 1) legal error, 2) procedural error, 3) factual error.

If you think the court used the wrong law, then you might have a good appeal. If you think the court interpreted the law incorrectly, then you might have a good appeal. If you think that the court ignored a rule of law it should have considered, then you might have a good appeal. If you think that the court did not provide a fair proceeding because you did not receive proper notice, or the court did not permit you to present your case, you might have a good appeal. If you think, the court relied on evidence that it should not have listened to, then you might have a good appeal. If you think that all of your opponent’s evidence fails to prove that which court determined to be true, you might have a good appeal. 

However, If you think the court made the wrong decision because the court disregarded (did not believe) your evidence, you probably have a bad appeal. If you think the court made the wrong decision because your lawyer did a poor job presenting your case, you probably have a bad appeal. 

A writ is an order requiring a governmental authority to do something or to stop doing something. Writ proceedings start with a petition for a writ. Appellate writ petitions usually request an order from a higher to court to a lower court to do something, or to stop doing something.

Usually, a party seeks a writ to get a higher court to reverse or change an order which is not appealable at the time. To get a writ, the party must show that an appeal of the final judgment would provide inadequate relief. 

A classic example of an appeal providing inadequate relief is where a court orders disclosure of privileged information. If the party follows the order, then the protected information has been revealed. And, having the order reversed on appeal of the final judgment could not prevent the harm of revealing the information. Therefore, relief through appeal would be inadequate. 

Writ petitions are different than appeals. In a writ proceeding the higher court has discretion to hear or reject the petition without additional briefing or argument. In contrast an aggrieved party has right to have the final judgment, or order, reviewed by a higher court.

Nonetheless, some orders can only be challenged by a writ petition. A denied (or dismissed) motion to disqualify a judge can only be challenged through a writ petition. The same is true for a order denying a motion challenging personal jurisdiction, to change venue, or to remove a lis pendens. A motion for summary judgment (or summary adjudication) may also be reached by a writ. These are statutory writs. The are called statutory writs because the procedures for the petition are established by statutues.