Skip to Content

Congratulations, You Lost: a Basic Explanation of How the Appellate Process Works

There are three outcomes to litigation:  you win, you lose or you settle.  If you’ve settled, this is not the site for you.  If you’ve lost, congratulations on being a big, fat loser!  You get to appeal.  If you’ve won, please accept my condolences because the other side will most likely challenge that win on appeal.

Now that I have either ruined or made your day, let me give you a brief explanation of how the appellate system works.

HOW THE APPELLATE SYSTEM WORKS

When a case ends before the district court (the lower court), either party has the right to an appeal.  The appeal process is started by filing a notice of appeal to the next highest court.  Generally, court systems are structured like a staircase.  First, you must litigate in the lower court (step 1).  Then, you may appeal that decision to an intermediate appellate court (step 2).  After the intermediate appellate court decides your case, you can proceed to the highest, or the “supreme” court (step 3).  Seems pretty simple, right?  Unfortunately, the appellate process is a little more complicated than that.  Here’s a breakdown.

Nevada 

In Nevada, the appellate system looks more like an elevator and less like a traditional staircase.  Once you have lost in the district court, you file your appeal directly with the Nevada Supreme Court.  The Nevada Supreme Court is the highest court in the state.  The Nevada Supreme Court then decides whether your case will be sent back down to be heard by the Nevada Court of Appeals, the intermediate appellate court, or whether it will bypass the Court of Appeals and go straight to the Nevada Supreme Court.

If your case is assigned to the Nevada Court of Appeals, and you lose again, you can petition for review of that decision by the Nevada Supreme Court.  For cases assigned to the Court of Appeals, you are not automatically granted the right to have the Nevada Supreme Court hear your appeal.  If The Nevada Supreme Court declines to hear your appeal, your case is over.

If your appeal bypasses the Nevada Court of Appeals, and is heard by the Nevada Supreme Court, and you lose, you can petition the United States Supreme Court to hear your case.  Again, you are not automatically granted the right to have the United States Supreme Court hear your appeal.  If the United States Supreme Court declines to hear your appeal, your case is over.  If it grants your petition, your case is over once the United States Supreme Court hears the appeal.  The United States Supreme Court is the highest court in the country.  Except for maybe God, there is no one else who is going to hear your case after their decision.   

Federal

The federal system resembles a traditional staircase.  Once you have lost in federal district court, you file an appeal with the intermediate federal appellate court for that “circuit,” i.e., area of the country.  In Nevada, your federal appeal would go to the Ninth Circuit Court of Appeals.

If you lose in the Ninth Circuit, you may petition the United States Supreme Court for review.  Again, the United States Supreme Court gets to decide what cases it wants to hear.  If it declines to hear your appeal, your case is over.

If the United States Supreme Court accepts your appeal, your case is over once the Court issues a decision resolving your case.

This is a very simple overview of an uncomplicated appeal.  There are many legal nuances that may apply to your appeal which will affect where, when and how it is heard.

WHAT HAPPENS ON APPEAL

Unfortunately, suffering through litigation long enough to make it to the appellate process will not prepare you for what is in store.  The appellate process is nothing like the litigation process.  The case that you take up on appeal is the case that you lost (or won), below.  You cannot add new evidence, argument, claims or facts.  The appellate courts are limited to reviewing the decisions of the lower courts to determine whether those decisions are correct given the evidence, facts, argument and law before the court at the time that the lower court decided your case.

The appellate process is largely a written process.  Generally, the party who appealed (the “appellant”), will file an opening brief stating why they think the lower court screwed up.   The opposing party (in state court, the “respondent” and in federal court, the “appellee”), then gets the opportunity to file a responding brief in which they argue why the lower court was right.  The appellant can then file a brief which replies to the responding brief.   

The appellate court has discretion whether to grant oral argument on the appeal.  Oral argument is exactly what it sounds like.  Your attorney goes, stands before the Judges or Justices, and orally argues your case.  The Judges or Justices get to ask your attorney questions.  There are no witnesses.  There is no evidence.  You do not get to stand up and testify before the appellate court.  The argument is purely legal argument and the questioning by the Judges or Justices can be pretty brutal.   Adding insult to injury, your case may be determined without oral argument, if the court does not believe that argument is necessary.

The appellate court will then issue a decision on your case.

That’s the appellate process in a nutshell.  Again, most appeals are much more complicated than this.  You may have to participate in mandatory settlement conferences.  Your attorney likely will have to file procedural motions and briefs in addition to your opening, responding or reply brief.  But as a litigant preparing themselves for an appeal, you should at least expect the above process.