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Appeals FAQ. The Q & A
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7. What is the difference between an appeal and a trial?

Appeals and trials are very different. An appeal is not a “do-over.” In a trial level proceeding, evidence is collected (the discovery process) and presented either in pre-trial motions, such as summary judgments and oppositions to summary judgments, or in the courtroom before a fact-finder, either a jury (a jury trial) or the judge (a bench trial). During the trial, the judge decides what evidence will be heard, how it will be heard, and how it will be considered and weighed by the fact-finder. Depending on the issue, the judge’s rulings on that evidence may or may not affect how the evidence is weighed.

In an appeal, the appealing party is expected to focus on legal errors, not witness credibility, and not how much weight the judge or jury gave to one piece of evidence. The appealing party may also argue that the trial judge committed error in how she decided a motion that was presented before trial (e.g. a motion to dismiss the complaint might even be raised again on a final appeal if its important enough). Or that the trial judge committed error in how she ruled on the evidence presented at trial. Or that the trial judge committed error in how she ruled on the instructions to the jury presented at trial. Or other similar issues.

Also different is that, at the trial level, legal issues are generally prosecuted or defended by way of motions and responses, brief hearings, and a trial. At the appellate level, issues are prosecuted or defended by the written briefs, with the legally important facts already in the court record, citing the underlying law, and legal argument on how the error requires some kind of appellate remedy. The party defending the appeal files an answer brief, citing record facts and the law to support why the decision below is correct. And then, often after oral argument in the court of appeals, the court of appeals decides whether the trial court committed a legal error or disregarded critical facts, and, if so, the remedy needed to correct the error or mistakes.