Law Office of Tom James
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FAQs about appeals


Q: What is an appeal?

A: An appeal is the process by which a higher court reviews a lower court’s decision. In some cases, the higher court may overrule (reverse) a lower court’s decision if the lower court has erroneously interpreted or applied the law.

Q: Is there a right to an appeal?

A: Sometimes, but some kinds of appeals are granted only at the appellate court’s discretion. The United States Supreme Court, for example, reviews only a tiny fraction of the appeals that are filed there.

A filing fee and/or a bond (or other security for costs) normally must be filed. Under some circumstances, the court may grant a request for a waiver of fees, costs and/or bond,

Q: What is the proper court for an appeal?

A: Appeals from federal court decisions are filed in federal appeals courts, and appeals from state court decisions are filed in state appeals courts. For both state and federal courts, the United States Supreme Court is the court of last resort.

The federal appellate court system is comprised of thirteen circuits. An appeal from a federal district court decision is filed in the court of appeals for the circuit in which the district court sits. Minnesota is in the Eighth Circuit. Review from an adverse Eighth Circuit Court of Appeals decision is to the United States Supreme Court.

Review of state court decisions normally is had in the state’s court of appeals. There are sixteen judges on the Minnesota Court of Appeals. They sit in three-judge panels to hear oral arguments. Appeals from Court of Appeals decisions are to the Minnesota Supreme Court. A party who is dissatisfied with a decision of the Minnesota Supreme Court may petition the United States Supreme Court for review.

Q: What kinds of actions can an appellate court take?

A: The function of an appellate court is limited to reviewing the actions of lower courts and tribunals. It will not receive new evidence or conduct evidentiary hearings to determine the facts in the case. Instead, it will review the record of evidence that was presented to the lower court and determine whether it is sufficient, as a matter of law, to support the judgment or order that resulted from it. An appellate court may also review a lower court’s interpretation and application of law. Based on its review of the record, and after considering the legal arguments set out in the parties’ briefs, the appellate court may do the following things:

  • Dismiss: A dismissal may be appropriate if procedural or jurisdictional requirements for the appeal have not been met. This could include, for example, late filing, premature filing, failure to pay a filing fee or costs, failure to post a required bond, voluntary settlement, or other reasons. 

  • Affirm: The appeals court may affirm a decision if it determines that the lower court did not commit any errors. The appeals court may also affirm the decision if it determines that although the lower court made a mistake, it was not a kind of  mistake that was likely to have affected the outcome of the case very much. A lower court’s decision will not be reversed solely on the basis of “harmless error.”

  • Modify: An appellate court may modify portions of a judgment or order even if it does not reverse it.

  • Reverse: The appeals court may reverse a decision if it determines that the lower court committed an error, unless the appellate court also determines that the error is harmless.

  • Remand: “Remand” means to send a case back to the lower court, with instructions to the lower court about what to do next. For example, a reversal is appropriate only if the appeals court has enough information to conclusively decide that the lower court should have come to the opposition conclusion on a particular matter. If the court does not have enough information to do that, then it may send the case back to the lower court with instructions to conduct further proceedings to obtain that information. The court may further instruct the lower court to enter an order or judgment consistent with the additional information so obtained.  

  • Combined relief: An appellate court may issue an order that does more than one of the above things. For example, it can dismiss part of an appeal while allowing another part to proceed. It may modify a trial court's decision and affirm the judgment as modified. It may reverse one part of a decision and affirm another part. It may reverse a decision and remand for proceedings consistent with the reversal. For example, it may reverse a trial court’s finding that a defendant is not liable, and remand the case to the trial court to determine the amount of damages to which the plaintiff is entitled.

Q: Will an appellate court consider new arguments or objections that were not made in the lower court?

A: Generally, no. In very rare cases, an appellate court might agree to review matters that were not called to the trial court’s attention, where the “plain error” doctrine applies. A litigant should never count on an appellate court’s willingness to apply the “plain error” doctrine, though. In most cases, issues and objections that were not asserted and argued in the lower court may not be raised for the first time on appeal.

Q: Can I offer newly discovered evidence to an appellate court?

A: No, this normally is not permitted. If you discover new evidence after your hearing or trial is over, you should file a motion with the trial court for a new hearing or trial, or for other appropriate relief.

Q: Can I file an appeal before a final judgment has been entered in the case?

A: Cases generally may not be appealed until a final order or judgment disposing of the case, or dismissing it, is issued. Subject to only a few limited exceptions, review of interlocutory orders, such as orders excluding evidence, generally cannot be had until after a final order or judgment has been entered in the case.

Q: Is there a time limit for filing an appeal?

A: Yes. Every court has rules governing the length of time within which an appeal must be commenced. Final decisions of federal district court judgments generally must be commenced within 30 days (or 60 days if the United States, or an agent or officer of the United States, is a party.) Unless a statute provides otherwise, appeals from Minnesota state court decisions must be taken within 60 days after entry of the judgment, or within 60 days after notice of filing of the order is served. Certain kinds of post-judgment motions, such as a motion for a new trial or for amending findings, may toll the running of the filing period, if the motion has been timely and properly served. The 60-day period would then be measured from the date the notice of filing of the final order on the motion is served.

Q: What is the Family Law Appellate Mediation program?

A: Minnesota now requires the parties to participate in mediation whenever an appeal is taken from a family court order or judgment. A party may request an exemption from the program under certain circumstances, such as in cases involving domestic violence, cases presenting an unsettled question of law upon which an appellate court should rule, and certain other kinds of cases. Mediators are selected from a short list private mediators maintained by the court. The parties are responsible for payment of the mediator’s fee.

If mediation is not successful, the parties may proceed with the appeal. Time periods for ordering transcripts and briefing normally are stayed during the mediation process. They begin to run again after the mediation has concluded.