Attorney, The Creekmore Law Firm PC


Everyone knows that court action begins with a trial, or, at least, the threat of one.  A trial litigates both factual and legal issues like, “Was the light green?” or “Was the police officer’s search unconstitutional?”  Thus, the purpose of a trial is (1) to determine what happened and (2) to determine if what happened makes a defendant liable for damages or subject to some other kind of court remedy, like an injunction.  A civil trial might end in an award of monetary damages, or even an order to stop certain behavior, and a court judgment embodying those remedies.  A criminal trial, likewise, could end with large fines, jail time, and an adjudication of guilt that can negatively impact employment prospects and even negatively impact certain civil rights, like the ability to vote and possess a firearm.

What is a person to do in the face of such consequences?  Appeal.

What is an appeal?

An appeal explores whether a mistake occurred at trial sufficient to reverse the trial court’s judgment, either in whole or in part.  The mistake must not be harmless–in other words, it must affect the outcome of the case.  Such a mistake is known as a “harmless error,” which, although technically a legal error, will not result in the reversal of a judgment or conviction.  The kind of mistake warranting reversal will usually have a legal dimension to it, and touch upon a particular ruling of the trial court with respect to that legal dimension.  Appeals commonly challenge things like the admission or non-admission of evidence at trial, jury instructions, and the sufficiency of the evidence to convict or find someone liable for damages.

How is an appeal different from a trial?

Unlike a trial court, an appellate court does not re-litigate purely factual questions.  So, an appellate court will generally review questions like whether a trial court erred by admitting evidence over a hearsay objection, but it generally will not review factual disputes, like whether a light was green or red.  That task is left to the fact-finder, oftentimes a jury but in some cases a judge.  Most appellate courts take their role seriously and interpret its limits strictly so that it will not impede the province of the jury. To re-evaluate a jury decision on a factual question, therefore, requires such a gross interpretation of the facts that the ultimate ruling predicated upon those facts would serve a grave injustice.  In Virginia, such an interpretation of the facts is one “plainly wrong or without evidence to support” the interpretation.

What makes for a good appeal?

Given the deferential standard by which appellate courts will review a trial court’s factual decision, the best appeals will be those that address strictly legal issues.  Of course, good appellate counsel will often be able to parse out a legal issue from a mixed factual and legal question, making the legal challenge more likely to succeed on appeal.  Good appellate counsel will also consider the rules of statutory interpretation to weave a compelling argument to justify the reversal of a trial court’s decision.  While not easy to achieve, reversal of a trial court decision via an appeal can change the course of litigation significantly by breathing new life into an otherwise adjudicated case.

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