What is an Appeal?

June 6, 2018 | Sam Morris

Appellate Practice:  Introduction 

Imagine that you have just been through a two-week jury trial.  Though stressful, you prevailed and received a favorable judgment.  Perhaps due to the impression given by television dramas or Hollywood blockbusters, you believe the litigation is finally over.  Soon after, however, your lawyer calls to inform you that he or she has just received a notice of appeal.  Welcome to the often-unfamiliar jungle that is the appeals process.  

What is an appeal?  

Broadly, an “appeal” asks a higher court to review the decision of a lower court.  If you have ever visited an appellate court, you may have noticed that there was no witness stand or jury box, as they generally make no determination of fact.  This is because an appeal is not a retrial or “do-over, and appellate court does not reweigh evidence or independently decide a case on its merits.  Instead, an appellate court considers whether legal error occurred at trial or a lower court misinterpreted the law.  If an appellate court determines that error occurred at trial and that such error impacted the outcome of the case, it will send the case back to the trial court to correct the error.  

Appeals in North Carolina

In North Carolina, the party seeking review is called the appellant or petitioner.  The opposing party is the appellee or respondent.  Ordinarily, the appellant institutes the appeal by filing a notice of appeal, which triggers the time period for filing its appellate brief, a document presenting the relevant facts, procedural posture, and the appellant’s legal arguments in the case.  The appellee, then, will file its brief, responding to the appellant’s brief. Thereafter, the appellant may file a reply brief, concisely rebutting the arguments raised by the appellee.  

Governing Law and Rules

Various highly detailed rules and statutes govern appellate practice and procedure, and many practice pitfalls exist.  For instance, suppose a trial court erroneously admitted a piece of inadmissible evidence or gave an incorrect jury instruction?  Under Rule 10 of the North Carolina Rules of Appellate Procedure, such issues are generally not preserved for appellate review if trial counsel failed to promptly object and obtain a ruling on the matter.  This is true even if the trial court’s error impacted the trial.  

As you can tell, successfully navigating the appeals process is a challenging but often necessary phase of litigation.  Strategizing and planning an appeal is complex and does not begin after filing the appeal; it begins at trial.   When selecting an attorney to represent you, it is important to consult with an attorney who is experienced in this area.  Our office can help you if you live in Morehead City, Beaufort and/or New Bern, North Carolina or other surrounding areas.      

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