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Scotti Doesn’t Know: When Judicial Misconduct Warrants a New Trial

 In Azucena v. State of Nevada, the Nevada Supreme Court held that a judge committed judicial misconduct warranting a new trial after the judge, literally, threw a book at a potential juror during voir dire.  135 Nev., Adv. Op. 35, 448 P.3d 534 (Nev. 2019).  

 If you have ever seen the movie Eurotrip, you understand why I had to write this post, because the judge’s name is Scotti.   

If you haven’t, google it. 

But even without Eurotrip, Azucena answers a very common question that frequently comes up:  When does judicial misconduct warrant a new trial? 

AZUCENA

During voir dire in a criminal case where the defendant was charged with multiple sex offenses against children, “the trial judge throw a book against the wall, and berated, yelled at, and threatened a prospective juror for expressing the belief that she could not be impartial.”  Azucena, 448 P.3d at 536. 

Voir dire is the legal term used to describe “picking an impartial jury.”  Under the United States Constitution and the Nevada Constitution, every defendant is entitled to a trial by an impartial jury of his or her peers.  Nev. Const., art. 1, § 3; U.S. Const., amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”).  Voir dire, or questioning of the potential jurors, is how lawyers determine whether a juror may possess a bias which would violate the defendant’s right to an impartial jury. 

Because selecting an impartial jury is so important, voir dire can sometimes take days.  In Acezuna, when the potential jurors came back for the second day of voir dire, one juror noted that she might have bias towards the defendant because she was a nurse who was frequently exposed to child abuse.  448 P.3d at 536.   This is what happened next: 

The Court:  So you didn’t say that yesterday.  All right.

Prospective Juror No. 177: Well, I said I had other issues.

The Court:  No, listen – what – what we’re not going to have in this jury is people coming in overnight and thinking up shit and try to make shit up now so they can get out of the jury. That’s not going to happen.  All right.  All right.  Because if I find that someone said something yesterday under oath and changes it because they’re trying to fabricate something to get out of serving on this jury, there’s going to be repercussions.  All right. 

Id.  As he was yelling at the juror, the judge threw a book against the wall.  Id

After the juror was excused, the next prospective juror stated “that she had been sexually abused as a child but stated that she would not be biased.”  Id. at 536-37. Unsurprisingly, every other juror stated that they definitely, probably, did not have any potential bias.  

The Nevada Supreme Court held that this exchange was “inappropriate and constituted judicial misconduct” in light of the judge’s role as the keeper of civility in a courtroom.  Id. at 538.  The Nevada Supreme Court further found that this judicial misconduct warranted a new trial because voir dire, one of the most important processes in a jury trial, is only effective “if the prospective jurors answer candidly.”  Id. When “jurors are given reason to fear reprisals for truthful responses,” it is presumed that jurors are not answering voir dire questions candidly.  Id. at 538-39.   Given the judge’s reaction to the juror at issue, the Nevada Supreme Court found that other prospective jurors may have been discouraged “from responding honestly about their own biases out of fear of repercussions.”  Id.

Out of fairness to the judge, lawyers and judges hear the craziest excuses from prospective jurors who are trying to get out of jury duty.  I once had a juror write on their jury questionnaire that they could not serve impartially because they are prejudiced against people of color.  (Unfortunately for that juror, it was a trial involving wealthy, white people.)

The import of the Azucena case is not what actually happened in the courtroom; rather, it is the fact that this is one of the few cases where an appellate court has found that judicial misconduct warrants a new trial.  Judges are people too, and they have good and bad days like the rest of us.  Sometimes those bad days occur during trial.  But not all bad days are misconduct, and not all judicial misconduct is grounds for a new trial.  Litigants should be aware of when they should and should not argue it on appeal. 

WHEN JUDICIAL CONDUCT DOES NOT WARRANT A NEW TRIAL.     

The fact that the judge clearly did not like you or your attorney is not judicial misconduct warranting a new trial.   See, e.g. Coddington v. State, 415 P.3d 12 (Nev. 2018) (finding that a judge rolling his eyes and appearing frustrated during closing arguments was not judicial misconduct).  In Horton v. Fritz, the Nevada Supreme Court reprimanded the trial judge for threatening the appellant’s counsel with sanctions if the case was lost and commenting that “he was fed up with spurious lawsuits,” but nevertheless found that the appellant received a fair and impartial trial.   113 Nev. 824, 830, 942 P.2d 134, 138 (1997).  Another trial judge was reprimanded for commenting on credibility of one party’s witnesses, expressing impatience, rebuffing trial counsel for trial tactics, and asking a juror “isn’t this the most boring case you have ever heard?” in an elevator outside of the courtroom.  Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 416-17, 470 P.2d 135, 140-41 (1970).  However, the Nevada Supreme Court concluded that this misconduct did not deprive the appellant of the right to a fair trial, and did not warrant reversal.  Id

The fact that the judge clearly thinks your witness is lying is not judicial misconduct warranting a new trial.  Ginnis, 86 Nev. at 416-17, 470 P.2d at 140-41; see also Garnica-rojo v. State, 387 P.3d 880 (Nev. 2016) (holding that a judge’s alleged questioning of “a witness in such a way that implied disbelief concerning a witness’s testimony” was not judicial misconduct warranting a new trial). 

Similarly, the fact that a judge clearly likes a witness of the opposing party is not judicial misconduct warranting a new trial.  Brant v. State, 130 Nev. 980, 988, 340 P.3d 576, 582 (2014) (holding that a judge defending a witness’s decision not to answer a certain line of questioning and thanking the witness for his patience was not judicial misconduct warranting a new trial). 

Overruling objections to evidence is generally not judicial misconduct warranting a new trial.  Cager v. State, 124 Nev. 1455, 238 P.3d 799 (2008) (holding that a judge’s overruling objections with “curt, dismissive instructions to sit down” and stating “we have two of you now objecting?” when second defense counsel attempted to object was not judicial misconduct warranting a new trial). 

WHEN JUDICIAL MISCONDUCT MAY WARRANT A NEW TRIAL

Judicial misconduct may warrant a new trial when it interferes with the voir dire process.  In contrast to the conduct discussed in Azucena, the Nevada Supreme Court has also found judicial misconduct to warrant a new trial when “the judge’s unfortunate, yet well-intentioned conduct injected an unwarranted levity into the proceedings that may have adversely influenced the [juror’s] perceptions of the significance of the trial.” Parodi v. Washoe Med. Ctr., Inc., 111 Nev. 365, 367, 892 P.2d 588, 589 (1995).  In Parodi, the judge turned voir dire into a literal parody by, among other things, leading the “prospective jurors in a standing ovation when appellants’ counsel returned a few minutes late from recess,” informing a tardy juror that “she was ‘eligible for this fun, too,’” joked about the solemn oath jurors must swear, “directed light-hearted comments to a prospective juror, whom he knew from college, regarding the judge’s fitness to serve on the bench,” and “endorsed one prospective juror’s business.”  Id. at n.1.  The Nevada Supreme Court held that this conduct was both inappropriate and potentially prejudicial, as it led the jurors to make light of the serious situation of a trial.  Id. at 370, 892 P.2d at 589. 

Interjecting levity into the later stages of the trial may also warrant judicial misconduct, particularly where the levity is aimed at one party’s counsel while excluding the other.  In Haluck v. Ricoh Electronics, Inc., the California Court of Appeal held that the judge’s conduct warranted a new trial where the judge “helped create, a circus atmosphere, giving defendants’ lawyer free rein to deride and make snide remarks at the will and at the expense of the plaintiffs and their lawyer.”  60 Cal. Rptr. 3d 542, 548 (2007).  The misconduct included, among other things, jokes between the judge and defense counsel about being in the “Twilight Zone,” the judge’s use of a written sign that said “overruled” on almost all of plaintiff’s objections but none of defendant’s, and used a “soccer style” “red card” to stop plaintiff’s counsel from speaking.  Id. at 550.  The result of this was to make the “plaintiffs’ lawyer the butt of [the judge’s and defense counsel’s] jokes . . . in a way that could only convey to the jury that they were a team and the plaintiff’s counsel was an outsider.”  Id

Judicial conduct that implies favoritism to any party in one manner or another may warrant a new trial.  For example, in Oade v. State, the Nevada Supreme Court held that a new trial was warranted due to the judge’s treatment of the “California” attorneys in the courtroom, which included levying fines or issuing warnings for minor transgressions, and “repeatedly express[ing] impatience with Oade’s counsel in the presence of the jury,” expressing an opinion that the evidence presented by Oade’s counsel was not credible and implying that a defense was not tenable.  114 Nev. 619, 623-24, 960 P.2d 336, 339 (1998).  While these errors on their own were not sufficient to warrant misconduct, in the cumulative they worked to “lessen[] the defense’s credibility and prevent[] the defense from obtaining full and fair consideration from the jury.”  Id. at 624, 960 P.2d at 339. 

Similarly, in Holderer v. Aetna Casualty & Surety Co., the Nevada Supreme Court held that a new trial was warranted where the trial judge “expressed his negative feelings toward personal injury attorneys” and “facetiously comment[ed] that he could be writing his ‘grocery list’ during trial.”  114 Nev. 845, 850, 963 P.2d 459, 463 (1998).  The Nevada Supreme Court held that this conduct put the appellant’s “counsel in a poor light and trivialized the proceedings.”  Id.  at 851, 963 P.2d at 463.

Judicial misconduct warranting a new trial may also occur when the trial judge makes comments that appear to be giving legal advice to one party’s counsel, as this may also imply favoritism for one party to the jury.  Bank of Am., N.A. v. Atkin, No. 3D18-1840, 2018 WL 6595138, at *4 (Fla. Dist. Ct. App. Dec. 14, 2018). 

Finally, conduct that interferes with the jury verdict may warrant a new trial.  See Taylor Morrison of Texas, Inc., No. 02-13-00364-CV, 2014 WL 487221, at *5 (Tex. App. Feb. 6, 2014) (holding that judicial misconduct occurred when the judge’s communications cause the jurors to “not complete their deliberations, vote on some questions, or render a verdict on all questions because the trial judge instructed them not to answer Question 10 and to stop their deliberations”). 

WHAT TO DO IF YOU SUSPECT JUDICIAL MISCONDUCT

Judicial misconduct may arise from one isolated incident, as seen in Azucena, or from multiple incidents which cumulatively taint the trial.  See Holderer, 114 Nev. at 850-51, 963 P.2d at 463; Parodi, 111 Nev. at 367, 892 P.2d at 589. 

If the judicial misconduct is an overt, isolated incident, you should object at trial to preserve the issue for review on appeal.  Ginnis, 86 Nev. at 417, 470 P.2d at 141.  If the judicial misconduct is more subtle and cumulative, you have a choice.  As explained by the Nevada Supreme Court in Parodi, judicial misconduct is reviewed for plain error.  111 Nev. at 367, 892 P.2d at 589.  This means that the Nevada Supreme Court will consider the argument even if not objected to below, provided that the error is plain enough that the record demonstrates an injustice has been done.  Id.  In cases of cumulative error, multiple objections may not be appropriate as it places the party in “the untenable position of silently accepting the judge’s trivialization of the proceedings, or risking the prospect of alienating the judge or the jury by interjecting a discordant and somber note to the good-spirited trial atmosphere created by the judge.”  Id.  

THE MORAL OF THIS STORY IS

Do not literally throw books at jurors.  And watch Eurotrip, if you have not seen it. 

Hall v. Hall Revisited: In re Estate of Sarge

The Nevada Supreme Court has joined SCOTUS in holding that an order resolving one consolidated matter is independently appealable.  Hall v. Hall, 128 S. Ct. 54, 198 L.Ed.2d 780 (Sept. 28, 2017); In re Estate of Sarge, 134 Nev., Adv. Op. 105, 432 P.3d 718 (2018).  I discussed the Hall opinion HERE.

Prior to Hall, the rule in Nevada was that a consolidated case could not be independently appealed.  Mallin v. Farmers Ins. Exchange, 106 Nev. 606, 608-09, 797 P.2d 978, 980 (1990).  Following Hall, however, the NVSC overruled MallinSarge, 432 P.3d at 722. It found that Mallin did not address Rule 42 and relied upon Ninth Circuit precedent that was overruled in Hall.  Id.  The NVSC further noted that Mallin overlooked an earlier NV court case which stated that consolidated cases were independently appealable.  Id. at  721.  Reasoning that it should never allow its prior decisions to operate as a “straight jacket,” the NVSC overruled Sarge and held that consolidated cases are now independently appealable.   

Anatomy of an Opening Brief

A

One of the biggest differences between litigation and appellate practice is the briefing.  When you litigate, you can get creative with how you draft motions, what you title them, and what you include within the body of the brief.  You cannot do that on appeal.  Here’s how you structure an opening brief, and what you must include. 

CORPORATE DISCLOSURE STATEMENT

After the title page, the very first thing you should include in the brief is a corporate disclosure statement under either NRCP 26.1, or FRAP 26.1.  NRAP 28(a)(1); FRAP 28(a)(1).  The purpose of a corporate disclosure statement is to identify the immediate ownership of entities so that the presiding Justices can determine whether they need to recuse themselves.  For example, if a Justice owns a lot of stock in one of the entities that owns the appellant, they should probably recuse themselves so as to avoid any appearance of improper bias towards the respondent. 

Corporate disclosure statements must be filed any entity that is not a natural person or a government agency.  NRAP 26.1(a); FRAP 26.1(a).  The disclosure must identify the owners (whether it is a corporation or not).  If a publicly held corporation owns 10% or more the company, that company must be identified.  If the entity is not owned by a public corporation, then the corporate disclosure statement needs to specifically state that fact.  Id

The corporate disclosure statements only require you to identify immediate ownership.  If your client is a limited liability company that is wholly owned by another company, you only need to identify that company.  You do not need to go further up the chain of ownership.  See NRAP 26.1; FRAP 26.1.

In Nevada, you must also list all counsel who appeared on behalf of your client before the lower court, and who are expected to appear on appeal.  NRAP 26.1(a). 

The corporate disclosure statement is the first thing you file on appeal, which means that you must file it if you engage in briefing prior to the opening brief (motions, etc.).  FRAP 26.1(b); NRAP 26.1(b). Even if you have already separately filed a corporate disclosure statement, you must include one in your brief.  FRAP 26.1(b); NRAP 26.1(b). 

IN NEVADA, YOU ALSO NEED A ROUTING STATEMENT

Following the corporate disclosure statement, you must include a routing statement under NRAP 17, specifying which court should hear your appeal and why.  NRAP 28(a)(5).  How appeals and the routing process work in Nevada is discussed HERE.

TABLE OF CONTENTS AND TABLE OF AUTHORITIES

The next two items you must include are a table of contents, with page numbers, and a table of authorities.  FRAP 28(a)(2)-(3); NRAP 28(a)(2)-(3).  The table of authorities should contain every case, statute, rule, regulation, and secondary source that you cite, with the page number where each citation appears.  FRAP 28(a)(3); NRAP 28(a)(3).  Authorities should be listed alphabetically (case law and secondary sources), or numerically (statues and rules).  Id

JURISDICTIONAL STATEMENTS

The next item that should appear is a jurisdictional statement, identifying the source of the Court’s jurisdiction.  This must include the rule of appellate procedure that provides jurisdiction in the Supreme Court or Court of Appeals.  NRAP 28(a)(4); FRAP 28(a)(4)  The primary rule in Nevada is NRAP 3A.

You must include the filing dates of the notice of appeal, and the date the judgment was entered to establish that your appeal was timely brought within the 30-day period to appeal.  NRAP 28(a)(4)(b); FRAP 28(a)(4).  

You must also certify that your appeal is either from a final judgment or order, or from some other order over which the Supreme Court or Court of Appeals have jurisdiction.  NRAP 28(a)(4)(c); FRAP 28(a)(4).  Appealable orders which are not final judgments under Nevada law are listed in NRAP 3A(b). 

STATEMENT OF THE ISSUES

The next item is a statement of the issues on appeal.  NRAP 28(a)(6); FRAP 28(a)(5).  The “issues” on appeal are the errors you contend the District Court made.  “The District Court abused its discretion in granting sanctions because  . . . “  The District Court erred in granting summary judgment because … etc.

STATEMENT OF THE CASE

Following the statement of the issues, you must present a statement of the case.  NRAP 28(a)(7); FRAP 28(a)(6).  A statement of the case is a brief synopsis of the underlying facts of the case and the procedural background underlying the appeal. 

It is not a place for you to go off on a rant about the raving injustice your client suffered.  Opening briefs have word limits, and those limited words should not be wasted in the statement of the case. The key word here is “brief.”  The statement of the case should identify the nature of the underlying case (this is an appeal from a personal injury lawsuit, this is an appeal from a jury verdict of guilty in a first-degree murder trial, etc.).  It should briefly explain the facts and the procedural history leading up to the appeal. 

STATEMENT OF THE FACTS

The statement of the facts is exactly what it sounds like:  the statement of the factual and procedural background relevant to the appeal.  NRAP 28(a)(8).  Every sentence in this portion should have a citation to an appendix or a record on appeal page. 

You do not have to include every fact or every piece of evidence and every motion that was filed.  Your statement of the facts only needs to include those facts which are directly relevant to the issues on appeal.

SUMMARY OF THE ARGUMENT

The next item that must be included is a summary of the argument.  NRAP 28(a)(9); FRAP 28(a)(7).  The summary of the argument is similar to an introduction in a motion.  It is your real first chance to tell the Court why you are appealing, what the legal wrongs were that were suffered, and why the District Court was wrong. 

Do not simply restate your headings from your argument in your summary.  The Court hates this so much that they specifically put in their rule not “do not repeat the argument headings.”

THE ARGUMENT

The argument portion also speaks for itself.  This is where you get to argue why your client was wronged, why the District Court erred, and why the Court should rule in your favor on appeal.

Remember to always include the applicable standards of review for each issue.  You are required to include these by rule.  NRAP 28(a)(10); FRAP 28(a)(8).  You can learn what standards apply to your issues HERE.

THE CONCLUSION

Congratulations! You’ve made it to the end of your brief.  You still have to write a conclusion.  NRAP 28(a)(11); FRAP 28(a)(9).  The conclusion must state the relief sought.  Are you seeking reversal of some, but not all? Are you seeking remand?  Tell the Court what you want. 

But keep it brief.  The conclusion is not a place to rehash all of your arguments. 

RULE 28.2 CERTIFICATE

Your brief must also contain a certificate of compliance. NRAP 28(a)(12); FRAP 28(a)(10).  This certificate certifies that your brief conforms to the type and format requirements of the court, meets the word count, and is otherwise, basically, a legitimate filing.  NRAP 28.2; FRAP 32(a)(7).  If you are not represented by an attorney, you do not need to include this certificate. 

Viva Las Vegas: What Laws Protect Us From Mass Shootings?

People have probably been praying for Las Vegas for centuries, but recent events have given those prayers an entirely new and horrifying purpose. The mass shooting in Las Vegas is the deadliest mass shooting in U.S. history, and Nevadans are left wondering what, if anything, could have been done to prevent it.  Mass shootings the size of the one that occurred in Las Vegas do not fit any specific mold.  The assailants vary in age, background, and apparent motivation.  The weapons, locations, and methods are different.  All that citizens can do to protect against further acts of senseless mass violence is to focus on the W’s:  Why, Where, Who, and What. 

Focusing on the why will not solve the issue.  Most assailants, including the one in Las Vegas, take their own lives and leave law enforcement to speculate as to their motives.  One of the more common theories regarding motivation is that these assailants desire to live in infamy by having their name connected to a historical act of mass violence.  Because the media gives so much attention to mass shootings, this theory might be right.

The obvious solution would be to enact a law that prohibits the media from using the assailant’s name or photo.   However, the First Amendment’s guarantee to freedom of the press prohibits Congress or the states from enacting these laws. Prohibiting the press from reporting on something ahead of time is referred to as a “prior restraint on speech.”  Recognizing that a free press is a symbol of a free country, the United States Supreme Court has limited prior restraints to a very narrow category of “exceptional cases.”  CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994).  A prior restraint is only constitutionally permissible “where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.”  Id.  That type of evil is not present in mass shootings.  They are rare, and therefore, not great.  We are left to guess at the assailant’s motives, so the evil is not certain.  And gun control is arguably the less intrusive measure to combat mass shootings.

Gun control focuses on the Where, Who and What. But laws preventing where a gun may be discharged are clearly not the answer to preventing mass shootings.  It is illegal to discharge a firearm in a hotel or public resort.  NRS 202.280(1).  Yet, Las Vegas happened.  All states, including Nevada, prohibit possession of a firearm on school premises.  See NRS 202.265(1).  Yet, Columbine and Sandy Hook happened.   

Laws preventing who can possess a gun also do not seem to be the answer.  Nevada has some of the most lenient gun control laws in the country, and does not require its citizens to obtain a permit before owing a firearm.  However, Nevada has enacted laws preventing those who are statistically likely to engage in gun violence from possessing a firearm.  It is illegal for a person with a domestic violence record to own or possess a firearm in Nevada.  NRS 202.360(1).  Felons and fugitives from justice also may not own or possess firearms in Nevada.  NRS 202.360(1).   And, a person who has been found to be mentally ill by a court, who has entered a plea of guilty but mentally ill, or who has been acquitted from a crime due to insanity cannot own a firearm in Nevada.  NRS 202.360(2).

The problem is that most mass shooting assailants pass background checks.  They are not felons.  While they may have histories of domestic violence, they do not have domestic violence police records.  While they may be mentally ill, they have not been found by a court to be mentally ill.  To illustrate, the Las Vegas assailant legally owned upwards of 50 firearms which may have been used in the attack.

Perhaps the key to preventing mass shootings lies in what guns are accessible to the general public.  Although the weapon of choice varies in mass shootings, automatic and semiautomatic rifles are commonly used.  Under federal law, only automatic weapons made or registered before May 19, 1986 may be owned by a citizen provided the weapon is registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives and the owner has passed an extensive background check.  Despite this federal restriction, some states, like California, completely prohibit possession of automatic weapons regardless of when they were made or registered.  Many states place significant restrictions on the possession of semiautomatic weapons.  Nevada does not have any laws that restrict what type of firearm may be owned.

Enacting such a law might be a simple solution, were it not for a little thing called the Second Amendment. Prohibitions on the types of firearms that may be owned by a citizen raise significant Second Amendment concerns.  For example, in District of Columbia v. Heller, the United States Supreme Court held that a District of Columbia ban on the possession of handguns by any citizen violated the Second Amendment because it infringed the individual’s right to bear arms.   554 U.S. 570, 628-29 (2008).   Reasoning that the primary purpose of the Second Amendment was to allow a citizen to bear arms in self-defense, the United States Supreme Court struck down the D.C. law because handguns are the preferred firearm for self-protection. Id.

However, Heller left open the question of whether bans on semiautomatic and automatic weapons would be constitutionally permissible under the Second Amendment since these weapons are not typically used for self-defense.  The federal courts generally agree that the Second Amendment does not guarantee the right to possession of a certain type of firearm, provided the individual’s right to bear arms in self-defense is not otherwise unconstitutionally infringed.  See Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 538 (6th Cir. 1998) (“Moreover, we note that the Federal Constitution does not provide a right to possess an assault weapon.”).

A ban on automatic weapons and semiautomatic rifles may also be constitutionally permissible under Nevada’s Constitution.  Although Nevada constitutionally guarantees its citizens the right to bear arms for hunting, there is no reason to use an automatic or semiautomatic weapon to hunt.  See Nev. Const., art. 1, § 11.  No hunter is going to mass shoot a herd of deer.   

So what should Nevadans do?  The reality is that no law can eradicate evil from this world.   No law can bring back the 59 lives that were taken too soon.  We must, as Elvis would want us to, move forward into the future with a strong heart and a nerve of steel.  Viva Las Vegas.

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.