The Art of the Appeal

Understanding Appellate Practice

Appeals are part of the broader lifecycle of litigation, shaping precedent and influencing settlement outcomes. A successful appeal can change not only the outcome of an individual case but also the interpretation of the law moving forward. In this way, appellate rulings often carry a precedential weight that shapes the legal landscape well beyond the immediate dispute.

Rather than retrying the case, appellate courts focus on whether the trial court applied the law correctly. This makes appellate practice a discipline all its own, requiring precision, patience, and strategic thinking.

When Can You Appeal?

Not every unfavorable ruling can be appealed. Most appeals are governed by the ‘final judgment rule,’ meaning they can only be brought once all claims and parties have been resolved.

As Timothy Anzenberger of Adams and Reese LLP explains, “An appeal is typically predicated on a final judgment in the district court. You can’t just appeal every ruling you don’t like.”

The concept of a ‘final judgment’ may seem straightforward, but in practice it often requires careful analysis. A judgment must be entered as a separate docket entry by the clerk of the district court, and until that occurs, the appellate clock does not start.

There are exceptions, however, such as ‘interlocutory appeals’ under 28 U.S.C. § 1292, which allow review of certain rulings before the case ends. For example, orders granting or denying injunctions are immediately appealable. Other orders may be appealed only if the district court certifies that the issue involves a controlling question of law where substantial grounds for disagreement exist, and the appellate court agrees to take the case. These rules strike a balance between efficiency, avoiding piecemeal appeals, and fairness, allowing immediate review when the stakes are high.

Filing an Appeal

The appeal process begins with a ‘Notice of Appeal’ filed in the district court, typically within 30 days of the final judgment. That deadline is unforgiving. The Notice must specify the parties appealing and identify the judgment or order being appealed. It is a deceptively simple document that carries enormous consequences if mishandled.

Appellants must also file a representation statement under Federal Rule of Appellate Procedure 12(b), serve notice on all parties, and comply with local circuit rules, which may impose additional requirements. Attention to detail at this stage prevents procedural missteps that could doom the appeal from the start.

Building the Record on Appeal

The record on appeal includes all documentation and exhibits filed in the trial court, as well as transcripts of hearings. This record forms the exclusive foundation upon which the appellate court will review the case. No new evidence or arguments are permitted.

“The appellate court is not a do-over; you are stuck with the record you built,” stresses Steven Reingold of Saul Ewing LLP.

This reality makes it critical for trial lawyers to think ahead to potential appeals, ensuring the record is well-developed. For instance, if an objection is not preserved in the trial record, it is generally waived on appeal. This principle highlights why collaboration between trial and appellate counsel can be so valuable.

Litigation strategy is strongest when it anticipates future appellate review. By building a careful record, parties protect their rights and enhance the chances of success if the case moves to the next level.

Writing the Appellate Brief

The appellate brief is the cornerstone of the appeal. It frames the issues, presents the facts, and makes the legal arguments. Briefs must comply with strict rules on length, formatting, and structure. A typical brief will include a statement of jurisdiction, the questions presented, a statement of the case, a summary of the argument, the argument itself, and a conclusion. Each section has its own conventions; mistakes, such as failing to cite the record or ignoring word limits, can undermine credibility.

“Good appellate briefs tell a story; they don’t just recite law,” advises Jeff Leon of Karon LLC.

In the end, clarity, organization, and credibility are what set winning briefs apart. Headings should act as road signs, arguments should be logically ordered, and citations should be precise. The most persuasive briefs often combine rigorous legal analysis with a narrative that makes the outcome feel fair.

Oral Argument: The Courtroom Conversation

Oral argument is less about restating the brief and more about engaging with the judges’ questions. Preparation is essential, often involving multiple moot courts. Lawyers must be ready for both a ‘hot bench’ (lots of questions) and a ‘cold bench’ (few interruptions). Regardless of style, oral argument is a high-stakes opportunity to address the court’s concerns directly.

“Think of oral argument as a conversation with the court, not a monologue,” suggests Max Stein of Maxson Mago & Macaulay, LLP. That mindset helps advocates remain flexible, responsive, and persuasive. A lawyer who insists on sticking to a script risks alienating the panel, while one who listens carefully and can adjust in real time demonstrates mastery and poise. Oral argument is not the time for grandstanding but for clarity, responsiveness, and persuasion.

After the Decision

If an appeal is unsuccessful, options narrow quickly. Parties may seek rehearing by the panel or en banc, but such motions are disfavored and rarely granted. A petition for certiorari to the US Supreme Court is even less likely to succeed, with only a small fraction of cases accepted each term. Once the appellate court issues its mandate, jurisdiction returns to the district court for further proceedings.

Practical Takeaways for Lawyers and Clients

Appellate practice is not about re-trying the case but about precision, preservation, and persuasion. Lawyers and clients alike should keep several practical lessons in mind:

Evaluate carefully whether to pursue an appeal at all, given the costs and low reversal rates.
Remember that not every adverse ruling should be appealed, and sometimes moving on is the wiser course.
Avoid technical mistakes such as missed deadlines and formatting errors.
Build the record carefully during trial with an eye toward appeal.
Write briefs that are clear, credible, and engaging.
Treat oral argument as a conversation, not a speech.
Remember that appeals are not just legal battles but strategic decisions that can impact reputation and resources.

To learn more about this topic, view Appellate Practice. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested in reading other articles about litigation.

This article was originally published here.