Talk:Appellate procedure in the United States

From Wikipedia, the free encyclopedia
Jump to navigation Jump to search
WikiProject Law (Rated Start-class, Low-importance)
WikiProject icon This article is within the scope of WikiProject Law, an attempt at providing a comprehensive, standardised, pan-jurisdictional and up-to-date resource for the legal field and the subjects encompassed by it.
Start-Class article Start  This article has been rated as Start-Class on the project's quality scale.
 Low  This article has been rated as Low-importance on the project's importance scale.

Breaking the Term 'Appeal' into something meaningful and useful:[edit]

Other Editors - people who know far more about this than I do - have pointed out this Section maybe needs a general section and then needs breaking down into subsections based on Region and Forum, so laypeople can understand it...

To put that into context, my interest in this, as a layperson, is to discover if I can appeal a decision by a Magistrate to adjourn my Case for months on end, as the Order against me was an Ex-Parti Order and there is a 'No-delay Principle' with such Orders.

I also know a Judicial Review/Appeal can be taken against for example, a Health Authority if they make a decision that is contentious.

This Article is difficult to put into context/disentangle for these instances. There are probably loads of other instances also, stemming from a basic definition? — Preceding unsigned comment added by Downpatrickteacher (talkcontribs) 01:44, 7 March 2011 (UTC)

Multiple Mergers[edit]

Many stubby articles out there could do well to be merged into this one. Manney 23:48, 25 August 2006 (UTC)

I don't like the merger idea. Appeal is a very common, stand-alone term. I just went looking for it and found it. It is not easy to see how the article, it is supposed to be merged with, is identical or so closely related that the merger should proceed. I think it's a very bad idea. If it works, don't fix it. Achim 02:16, 3 October 2006 (UTC)

United States: standard of review[edit]

The sentence, "In cases where a judge rather than a jury decided issues of fact, an appellate court will apply an abuse of discretion standard of review", seems to be a sweeping generalization. Is there a particular source for this statement? I was under the impression (although I could be wrong) that the determination of the correct standard of review in an appellate case is a complex body of law. Until this point is clarified, I have decided to add a {{citations missing}} flag. 03:30, 25 June 2006 (UTC)

Yes, that is right in a way. Findings of fact, whether made by a judge or jury, are subject to abuse of discretion review. There is a complex body of law on the subject, but that is really basic. Manney 00:02, 26 August 2006 (UTC)

You are right that that proper standard of review is a complex matter. In fact, in most cases, judicial decisions on factual determinations relating to the merits are reviewed under the "clearly erroneous" standard.

Hence the very problem. Courts will state that they are using the abuse of discretion standard to review legal conclusions, even though it is essentially de novo because it is an abuse of discretion to reach an incorrect legal conclusion. You can only safely say (*The only think you can say safely is) that appellate courts must generally defer to factual findings by the lower courts, and are not required to defer to legal conclusions of lower courts. (As always, there are exceptions) As far as trying to delimit the standards of review for all cases, that is pretty much impossible.

PS, you should get yourself an account. Mneumisi 18:20, 22 December 2006 (UTC) Malphesian (talk) 07:16, 8 August 2019 (UTC)PS, I made some grammatical corrections. Malphesian

1911 garbage[edit]

Hmmm... I don't like the merger idea. I think that the general term needs a separate entry which should also discuss (without getting into too much detail) the concept itself as well as types of appeals (e.g. by leave / by right). A link to appellate court or similar could come off of this page. Tobit

I agree. It does provide a solid description however, I just wanted to here from the original proponent. Francis Davey 16:06, 24 July 2005 (UTC)

Bad idea. Appellate courts are an important and distinct part of jurisprudence in most court systems in the world and the name deserves its own page.

Definition of appeal[edit]

Looks wrong from my POV. First it uses the phrase "judicially cognizable" and I have absolutely no idea what it means (and I am a lawyer), so perhaps it could either be enlarged or explained. What would a non judicially cognizable judgment look like? Does the phrase add anything? Second, it assumes that one can only appeal final decisions, not so in my jurisdiction, so that needs to be changed to make it NPOV. Third, it would appear to encompass review, which is most certainly not an appeal (here anyway). Are reviews and appeals merged into the same notion in the US? Francis Davey 20:21, 21 July 2005 (UTC)

An automated Wikipedia link suggester has some possible wiki link suggestions for the Appeal article:

  • Can link lower court: ...y, this means formally filing a [[notice of appeal]] with a lower court, indicating one's intention to take the matter to the next ...
  • Can link administrative law: ...atters by arbitrators, referees, masters, commissioners and administrative law judges in hearings and proceedings generally classed as [[a...

Notes: The article text has not been changed in any way; Some of these suggestions may be wrong, some may be right.
Feedback: I like it, I hate it, Please don't link toLinkBot 11:29, 1 Dec 2004 (UTC)

== In France, it is possible to appeal (appel) both on questions of law and facts. In addition, you may make a final appeal on questions of law, known as cassation. I understand that in some, perhaps all common law jurisdictions, appeals on questions of fact are not possible, only appeals on questions of law. Is that correct? David.Monniaux 18:43, 20 September 2005 (UTC)

No its not true here (England and Wales). It all depends. Its always possible to ask an appeal court to look at facts about a hearing below if there is an allegation of bias -- or if the court is reviewing its own decision. Eg, was the judge drunk/asleep? Other than that, there are no general rules about appeals, they are all particular statutory rules since appeals are not a common law notion. Most of our rules at lower tiers of the court system either permit appeals on facts, or complete re-hearings in certain circumstances. At higher levels it becomes much harder to do that. Francis Davey 20:59, 20 September 2005 (UTC)

Merger fails to include the term as used in criminal law[edit]

No. The term is used in primary cases, without regard to appeal, the baic criminal law, at least in Canada, will use the term instead of accused or synonomous with it. The person making a call to the police is called the Complainant, and the person cited by the police in a warrant or in a criminal inestigatioon, or in court when charged, as a respondent. Merger would loose this meaning. --Mikerussell 19:07, 12 November 2006 (UTC)

General statement[edit]

I think the following is specific to certain countries (for instance, it's not true in France) and should be moved to the relevant national sections or articles:

"Generally speaking the appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether that decision was legally sound or not. The appellate court will typically be deferential to the lower court's findings of fact (such as whether a defendant committed a particular act), unless clearly erroneous, and so will focus on the court's application of the law to those facts (such as whether the act found by the court to have occurred fits a legal definition at issue)."

Generally speaking, general statements should be avoided in topics which differ from one country to another (everything related to law or social sciences). I just removed from fr:Appel a sentence which contained the opposite bias.

Apokrif 16:42, 29 November 2006 (UTC)

That statement is certainly not true in Australia. In Australia an appeal court usually can review findings of fact with no bias in favour of the trial judge's findings and the only deference that the court will show to a factual finding is where it depends at least in part on the trial judge's assessment of a witness' credibility while giving evidence. (talk) 23:25, 4 December 2010 (UTC)

Other Countries[edit]

The current definition of Respondent is incomplete for non-US legal practice.

By way of example, the two parties to a divorce in the United Kingdom are the Petitioner and the Respondent. In the case of alleged adultery, the Petitioner can name the party with whom their spouse is alleged to have committed adultery. They become the co-respondent in the divorce.

As a result of this kind thing, simply merging Respondent (amongst other terms) into a general Appeal bucket will confuse rather than assist. —The preceding unsigned comment was added by Nigelx (talkcontribs) 09:48, 10 March 2007 (UTC).

I agree, but that is a general problem with wikipedia law articles. Put very bluntly, you don't know enough, and I bet no editor knows enough, to be able to write a decent article on "appeals" that works cross-jurisdiction. I and many other lawyers in my jurisdiction could write pretty good local articles, ditto those in other jurisdictions. I we did it that way and then abstracted from them some generality that might work. At the moment what happens is that someone writes a POV article (usually USA POV) and then we have to try tweaking it. The result is UGLY. The term "Respondent" is used in a lot of English law situations which aren't appeals (anyone responding to an application is a respondent for example). Don't you have applicants in the US? Who knows. Francis Davey 22:56, 2 May 2007 (UTC)

Not to mention non-common law countries (e.g., most of the world), which are all different from one another as well as different from the common law. (talk) 08:34, 7 October 2009 (UTC)

I completely agree that this is a common problem with legal procedure articles on wiki. They are written by a US lawyer or law student who sets out the US law on the assumption that the principles described are of universal, or almost universal, application. There are many statements in this article that may be true for US appeals, or at least some US appeals, but which are plain wrong in many other jurisdictions and are not remotely of universal application. Articles like this could be made a lot better if the US-centric details were removed and a much more general and concise description of the concept of an appeal included. Then if anyone wanted to write an article on US appeals it could be in a specific subsection (talk) 23:19, 4 December 2010 (UTC)


Since the merge tags appear to have been here for months with no significant efforts, I'm about to have a go at the merges. See what you think when I'm finished. --Scott Davis Talk 13:19, 13 April 2007 (UTC)

Done now. Here's the result. --Scott Davis Talk 14:51, 13 April 2007 (UTC)
The problem with the article is that it's trying to cover the concept of appeal in the entire English-speaking world, while a lot of the things it says are limited in geographic scope but the article does not point that out. Therefore the article is likely to be confusing to a layperson. For example -- the term "appellee" is a purely American term but the article implies that it is used everywhere. The business about filing a notice of appeal with the court from which you are appealing is not universal either. Sentences like "And due to the double jeopardy principle, the state or prosecution may never appeal a jury or bench verdict" are not true for all countries. --Mathew5000 17:37, 13 April 2007 (UTC)
True, but having "appellee" and "respondent" both used as they are introduced here is better than the state they were where the article Appellee simply mentioned that they are also called respondent in some places. I'm happy for you to try to neutralise the language further, but I agreed that merging improved the articles more than keeping them separate could. --Scott Davis Talk 01:07, 14 April 2007 (UTC)
At the moment it is wrong to have "Respondent" point to this article. One can respond to all kinds of procedural situation other than an appeal. In my jurisdiction I suspect that only a small percentage of respondents are responding to appeals. The proportion has risen, but not by much. Francis Davey 23:08, 2 May 2007 (UTC)
I say go for itMneumisi 13:22, 10 July 2007 (UTC)

approach to this article[edit]

Sorry if this is too blunt, but I don't like anything about this article as it currently stands. Let's start with the definition in the opening sentence: "An appeal is the act or fact of challenging a judicially cognizable and binding judgment to a higher judicial authority." What percentage of Wikipedia's audience is going to understand what that means? Moreover, that definition is not fully accurate. For one thing, you can sometimes bring an appeal from a non-binding judgment (such as a decision on a reference question). For another thing, not all appeals go to a "judicial authority" -- numerous administrative tribunals hear appeals too. See for example Ontario Municipal Board. Or as a university student, if a professor gives you an unfair grade on a final exam, you can often appeal that to a faculty committee. The definition of "appeal" needs to be broad enough to cover these cases. It also should be simple enough that twelve-year-olds can understand (so let's not use terms like "judicially cognizable"). My suggestion for a definition would be this: "In law, an appeal is a process for making a formal challenge to an official decision."

As for the rest of the article, it focuses way too much on the nitty gritty of appellate procedure and not enough on general history and philosophy. The basic question this article should answer is this: Why do almost all legal systems have an appeal process? Wouldn't it be much cheaper, both for litigants and for taxpayers, to just say that when a court makes a decision on your case, that decision is final? It is a serious question and there has been quite a bit written on it, particularly in the field of law and economics.

The article as written does not address the fundamental purposes of an appeal process.

Nor does the article discuss the history of the appeal process. Was it present in Roman law? If so, how has it evolved since then in England and various other jurisdictions?

As in all Wikipedia articles, we need to give some thought to who the likely audiences are that will come to this article, and how best to provide the information they are looking for in a way that they will understand. One audience is schoolchildren who know hardly anything about the legal system and want to get an idea of what an appeal is -- that audience is very poorly served by the article as written because it delves so quickly into technicalities. Another audience is laypersons who are involved (directly or indirectly) in litigation that has reached an appeal stage. For example, someone who was the victim of violent crime, where the perpetrator was convicted and is now appealing. Or the owner of a small business who was sued for breach of contract, lost at trial, and is now considering an appeal. I don't think the article as written will be very helpful to either of those people, because the details and even the terminology can vary so much between jurisdictions and this article does not do a good job of explaining what terminology and procedure is used in which jurisdictions. --Mathew5000 19:48, 13 April 2007 (UTC)

I have to work on this for school. >:( —The preceding unsigned comment was added by (talk)

Great - we look forward to seeing how you can improve the article. Good luck with your class. --Scott Davis Talk 13:57, 25 April 2007 (UTC)
The article is also badly POV because it assumes that appeals are always against judicial decisions which they may not be. In the United Kingdom the Asylum and Immigration Tribunal hears appeals from official decisions not judicial ones and that is not an uncommon variety of appeal in my jurisdiction. The problem is (as I say above) that in order to make this article accurate you have to hedge it around so much it is barely information. *sometimes* you need permission to appeal, *sometimes* you don't and sometimes there are other conditions. Sometimes the lower court gives permission, sometimes the upper, sometimes both and (for appeals as of right) sometimes neither. In some jurisdictions the prosecution can appeal sometimes (although mostly they can't) etc etc. All sorts of things are possible, which doesn't help anyone very much. Most law articles on wikipedia are in a dreadful state; are either misleading; uninformative or both. I tried for a while to make them better but found it almost impossible. The strong US domination being a highly negative factor. They key difficulty being that US lawyers and editors rarely mark their work as being of a particular jurisdiction, they mostly simply state it as a generality, I can then not easily improve an article since I don't know where they get their information from. I can't say in X jurisdiction this and Y jurisdiction that. I know very well what happens here since I practice as a lawyer (translating a complex situation for US readers) but I don't know what I am adding to. Francis Davey 23:06, 2 May 2007 (UTC)
I think it's useless to have articles on very broad topics, like "appeal", whose meanings vary from one country to another, or even from one field of law to another one: these articles should only be disambiguation pages leading to national articles. We have the same problem on fr: with articles which, in general, are misleading because the contributor overgeneralizes what they know about a country (generally France) or a field of law (i.e. they write statements which are true in private or civilian law, but not in administrative or military law). The contributor should always write (in the article title, in a section title, or at the beginning of a sentence) which subdomain they address (e.g. if a contributors knows something about appeals in German administrative courts, s/he should write "In German administrative courts..." unless s/he is sure the same holds for all German courts or for all appeal proceedings in all countries (this is almost impossible to check, of course)). Another problem in legal topics is that names are often misleading so that you cannot even give a minimal explanation of the topic by defining each of its component words (e.g. supreme courts are not always highest courts, courts of first instance sometimes hear appeals) Apokrif 16:52, 11 July 2007 (UTC)

Collateral Review -- removal[edit]

User:A.Z. has been removing a section written by another registered user without proper explanation. Can you please explain here? Francis Davey 17:00, 21 October 2007 (UTC)

NB: I don't think much of that section since it seems a little POV, or at least confusing, but that's no reason to rv. Francis Davey 17:05, 21 October 2007 (UTC)

See my response on my talk page. A.Z. 17:16, 21 October 2007 (UTC)

Appeals process, duration, and cost questions[edit]

I was doing readings on the Anascape v. Nintendo lawsuit and it occurred to me that I have no real grasping on the nature of what happens after someone "appeals" the verdict. What is it that fuels the appeals process to continue on and on, and are there any statutes that govern fair duration or limits on proceedings such as this case? Murakumo-Elite (talk) 09:06, 15 March 2009 (UTC)

Let's start again from scratch[edit]

Unfortunately this article symbolises everything that's wrong about legal article on Wikipedia. At first it started as a US-centric article, about US law but stated in general terms, then it got developed into a sort-of English-speaking-world centric article but without any real coordination. Now it's just a general mish-mash. I'm not even that sure how to remedy the problems, but might I suggest writing a general article from scratch. — Blue-Haired Lawyer t 15:56, 13 February 2011 (UTC)

I agree. It needs a rewrite. Malke 2010 (talk) 04:23, 14 September 2011 (UTC)

Needs a history section[edit]

It also needs a section on the history of appealing. What countries and legal system provided such a thing. When did the idea of appealing first start, etc. Ariel. (talk) 19:42, 27 December 2011 (UTC)

Page moved[edit]

Just to note that this article has been moved to Appellate procedure in the United States from Appeal. — Blue-Haired Lawyer t 10:14, 25 May 2012 (UTC)

"See also" section[edit]

Is there a reason the "See also" section in included within the main body of the article? If I am not mistaken this should be the first section "after" the main body. Otr500 (talk) 20:17, 5 September 2013 (UTC)

Yeah, that was bizarre. It had two see also sections for a week or so because I added one not seeing the one in the middle. I'm not sure if there was a specific reason, but I moved it to the normal place. Bali88 (talk) 04:11, 16 July 2014 (UTC)

Non-federal collateral review[edit]

Most states have state-level postconviction/collateral review of criminal cases, usually by way of state habeas. See, e.g., [1], IV. "A State-by-State Summary". Accordingly, without objection, I will remove the statement "The key distinguishing factor between direct and collateral appeals is that the former occurs in state courts, and the latter in federal courts." Thanks, Kevin (aka L235 · t · c) 01:42, 24 May 2017 (UTC)

There have been no comments, let alone objections to the proposal to remove the "key distinguishing factor" statement. The statement is patently incorrect. I suggest that after two years it is time to actually remove it. /Bruce/ [aka Slasher] (talk) 16:27, 13 December 2019 (UTC)

External links modified[edit]

Hello fellow Wikipedians,

I have just modified 2 external links on Appellate procedure in the United States. Please take a moment to review my edit. If you have any questions, or need the bot to ignore the links, or the page altogether, please visit this simple FaQ for additional information. I made the following changes:

When you have finished reviewing my changes, you may follow the instructions on the template below to fix any issues with the URLs.

This message was posted before February 2018. After February 2018, "External links modified" talk page sections are no longer generated or monitored by InternetArchiveBot. No special action is required regarding these talk page notices, other than regular verification using the archive tool instructions below. Editors have permission to delete these "External links modified" talk page sections if they want to de-clutter talk pages, but see the RfC before doing mass systematic removals. This message is updated dynamically through the template {{sourcecheck}} (last update: 15 July 2018).

  • If you have discovered URLs which were erroneously considered dead by the bot, you can report them with this tool.
  • If you found an error with any archives or the URLs themselves, you can fix them with this tool.

Cheers.—InternetArchiveBot (Report bug) 02:45, 8 July 2017 (UTC)