What Is an Appeal? Asking a Higher Court to Look Again

Appeal courts generally review for error rather than reaching their own view of the case, and the distinction between questions of law and questions of fact governs everything. Questions of law, meaning what a rule means and whether it was applied correctly, are reviewed freshly, since the appeal court is at least as well placed to answer them and a consistent answer across cases is the point of having a hierarchy. Questions of fact, meaning what happened, are reviewed with substantial deference, since the trial court heard the witnesses and observed them and an appeal court has only a transcript. That means a finding of fact will generally stand unless no reasonable tribunal could have reached it, which is a demanding standard. The consequence is that an appeal is not a second attempt at the same argument.

An appeal court has a limited set of options and each has consequences:

• •Dismissing the appeal, which leaves the decision standing
• •Allowing it and substituting a different decision, which ends the matter
• •Allowing it and ordering a new trial, which returns the case to the lower court and can mean everything is done again
• •Allowing it in part, adjusting some aspect while leaving the rest
• •Remitting with directions, sending it back with instructions on the correct approach
• •Declaring the law for future cases while leaving the particular result undisturbed, which happens where the error made no difference

The function is partly correction and partly consistency, and the two are distinct. Correction addresses the individual case, since trials produce errors and a system with no route to fix them imposes them permanently on people who did nothing to deserve the error. Consistency addresses the system, since without a hierarchy each court would develop its own interpretation and the same rule would mean different things in different places, so appeal courts exist as much to settle the law for everyone as to help the particular appellant. That second function explains several features that look odd from the perspective of the individual, including courts choosing which cases to hear based on the importance of the question rather than the strength of the claim, and deciding points that no longer affect the parties.

Legal systems arrange courts in a hierarchy and the number of levels available is limited deliberately. A first appeal is generally available as of right or on a low threshold, since correcting ordinary error is the main function. A second appeal usually requires permission and is granted only where a point of general importance arises, since the system is not designed to allow repeated attempts and the resources are finite. A final court of appeal hears a small number of cases selected almost entirely for their importance to the law rather than for the position of the parties, which means most people never reach it and that reaching it is not a measure of the strength of a case. Some systems add a constitutional court with a separate jurisdiction. Beyond the domestic hierarchy some jurisdictions permit application to an international court, which operates on different principles and on a far longer timescale.

The process falls short of what people expect in several specific ways. New evidence is generally not admitted, since the appeal reviews the decision made on the evidence available, and admitting fresh material requires satisfying strict conditions about why it was not produced earlier. Cost is a serious barrier, since appeals are expensive and unsuccessful appellants frequently pay the other side's costs, which deters claims regardless of merit. Time limits are short and strictly enforced. Grounds must be identified specifically, so dissatisfaction with the result is not itself a ground. And the deference to factual findings means that a case lost because a witness was believed who should not have been is extremely difficult to overturn, which is the situation most people appealing are actually in. Wrongful conviction cases in particular have exposed how poorly the ordinary process handles that.

Appeal courts review legal questions freshly and factual findings with heavy deference, since the trial court saw the witnesses, which is why an appeal is not a second trial. Outcomes include dismissal, substitution, a new trial and declaring the law while leaving the result. The process exists as much to settle the law for everyone as to help the appellant, and new evidence is rarely admitted.