Written by Robert(Bob) Whitman Eric Berger  KWM New York Office


Appeals of judicial decisions are commonplace in both federal and state court litigation in the US.  This note provides a brief overview of common types of appeals, an overview of US appellate courts, and the common appellate standards of review, which are the frameworks appellate courts use when evaluating appeals.

Common Types of Appeals

After a trial court level judge has entered a final written decision that resolves all claims against all parties to a litigation, the parties may typically appeal any final determinations by the court as a matter of right.  This is generally true for both federal and state court cases.  Because all parties to a litigation have the right to appeal and the court’s rulings on different issues often favor different parties, it is common for appeals to involve multiple issues being contested by different parties.

Before all claims in a litigation are resolved, a party may seek to appeal a decision it disagrees with through what is called an interlocutory appeal.  Such appeals are not available as a matter of right and proceeding with such an appeal requires the approval of the trial court.  The specific requirements for bringing an interlocutory appeal vary by court.  Federal district courts generally have three requirements for an interlocutory appeal to proceed.  First, that the outcome of the case would be conclusively determined by the issue being appealed.  Second, that the issue being appealed is collateral to the merits of the case.  And third, that the matter would be effectively unreviewable if immediate appeal was not allowed.  Interlocutory appeals are relatively rare in US civil litigation.

Decisions by US federal administrative agencies, such as the Securities and Exchange Commission or the US Patent and Trademark Office, may also generally be appealed to a federal court.  Which court hears the appeal depends on which administrative agency’s ruling is being appealed, with most such appeals being heard by a federal appellate court.

Decisions by intermediate appellate courts in the federal and state systems may potentially be appealed further to the US Supreme Court in federal cases or a state supreme court in state cases, but such appeals of an appellate court decision are not allowed as a matter of right.  The specific requirements for such appeals vary between the federal and state systems and from state to state, but typically require the party seeking a further appeal to submit briefing requesting the secondary appeal.  For example, an appellant wishing to be heard by the US Supreme Court must petition the Court for a writ of certiorari allowing such an appeal to proceed.

US Appellate Court Overview

Both the federal and state court systems have three levels of courts: a trial court level (referred to as district courts in the federal system), intermediate level appeals courts, and a highest level appeals court that is typically referred to as the supreme court, although the naming conventions vary somewhat by state.

Appeals from federal district courts are typically heard by the intermediate appellate level circuit court of appeals for the region where the district court is located.  There are, however, some exceptions, such as that all appeals of patent litigations are heard by the Court of Appeals for the Federal Circuit in Washington, DC.  Federal appeals at the intermediate appellate level are heard by panels of three appellate judges.  A party who loses such an appeal may requesting a rehearing “en banc” by all of the judges of that appellate court, but such a rehearing is not available as a matter of right.  An appellant who wishes to further appeal a federal appellate decision to the US Supreme Court can request permission from the Court to do so, but such requests are seldom granted.

State court appellate procedure varies by state, but trial court decisions may typically be appealed to an intermediate state appellate court as a matter of right.  Typically, a panel of three to five appellate judges would hear such an appeal, depending on the state.  A secondary appeal of a state appellate court’s decision to the state’s supreme court is not generally available as a matter of right in civil cases and instead requires approval from the state supreme court, which is seldom granted.  A decision by a state supreme court may potentially be appealed further to the US Supreme Court, but as with other attempts to appeal to the US Supreme Court, this requires petitioning the Court for a writ of certiorari, which the Court almost always denies.

Appellate Standards of Review

The framework that an appellate court uses to evaluate an issue on appeal is referred to as the standard of review.  The particular standard of review applied by an appellate court depends on the relevant courts and the specific issue and decision being appealed.

Appellate review of issues of law decided by a court are subject to de novo review, which literally translates to “of new.”  This is a standard of review where the appellate court evaluates the issue on its own as if the issue had not been previously decided by a lower court and without deferring to the decision of the lower court.  This is the least deferential standard of review used by appellate courts.

When an administrative agency interprets a law as part of making a decision and that interpretation is appealed, the appellate court applies Chevron deference, which is named after the US Supreme Court case that articulated this standard of review.  Chevron deference applies to questions of statutory interpretation decided by an administrative agency in a manner that has the force of law.  This standard of review gives substantial deference to the administrative agency’s decision.  The agency’s interpretation of the statute does not have to be the only permissible construction of the law for the agency’s decision to stand.  Rather, if the agency’s decision is based on a permissible construction of the statute and Congress has not addressed the precise issue in question, then the appellate court will not overturn the administrative agency’s decision based on its interpretation of the law.

The standards of review applied to factual determinations tend to be more deferential than those applied to rulings on issues of law.  Findings of fact made by a jury are subject to a substantial evidence standard of review that will not overturn the jury’s decision so long as it is supported by substantial evidence.  Generally, more than a mere scintilla of evidence in support of the jury’s determination is needed to meet this standard.  But the jury’s determination does not need to be the only reasonable determination supported by the evidence to be upheld on appeal.  If there is evidence that a reasonable mind might accept as adequate to support the jury’s conclusion, that is sufficient for the jury’s conclusion to be upheld on appeal.  This standard is applied to every material fact that a jury decided that is necessary for establishing an essential element of a claim or defense that is being appealed.

While factual determinations are usually left to juries in US civil litigation, in some cases judges make factual determinations, such as during a bench trial in front of a judge, which does not involve a jury.  Appellate courts review findings of fact made by a judge using a clearly erroneous standard that only overturns the lower court judge’s ruling if it constituted clear error.  During such a review the appellate court will look at the evidence as a whole and consider whether it has a definite and firm conviction that a mistake has been committed by the lower court.  While the lower court’s decision does not have to be the only decision supported by the evidence to be upheld, a lower court decision with some supporting evidence can still be overturned.

During litigation trial court judges are often required to make discretionary decisions on issues such as discovery disputes, whether a requested continuance should be granted, or on evidentiary issues.  Appellate courts review such decisions under an abuse of discretion standard that looks at whether the trial court abused its discretion in making its ruling.  This is a very deferential standard that rarely results in an appellate court overturning a lower court’s decision.  Examples of when a lower court’s decision on a discretionary issue may be overturned include instances where the lower court’s ruling was arbitrary, capricious, whimsical, or resulted in a manifestly unreasonable judgment.  Such a decision may also be overturned if the ruling made by the lower court was beyond the bounds of permissible choice in the circumstances.

Not all decisions considered on appeal present purely legal or factual disputes.  Some decisions involve a mixed question of law and fact, for example when a trial court makes a determination of whether a settled rule of law as applied to established facts is violated.  In such instances the parties do not dispute the historical facts at issue or what rule of law is applicable.  Typically, an appellate court applies a de novo standard of review in appeals of determinations made on a mixed question of law and fact.  But if factual issues predominate in the lower court’s decision, a clearly erroneous standard of review may be applied by the appellate court.