FREQUENTLY ASKED QUESTIONS ABOUT CIVIL APPELLATE LAW

The Trial Judge ruled against me. Can I appeal to another court?
Yes. In Texas, when a Final Judgment is rendered in the trial court, the losing party has a right to appeal in almost every case. The appeal is usually to one of the Texas Courts of Appeal.

What happens in an appeal?
The losing party in the trial court requests that the record in the trial court be prepared and sent to the court of appeals. The record consists of the important documents filed in the lawsuit and the transcript of testimony at trial. After the record is sent to the court of appeals, the losing party (now called the Appellant) files a Brief in the court of appeals.

The Appellant’s Brief is the written argument by the appellate lawyer stating why he believes the trial court judge made the wrong decision. The Brief makes specific references to the record to show the errors and it makes specific references to legal authorities to show why they are errors. This Brief may be as much as 50 pages long.

The Appellee (the winning party from the trial court) files his written Brief and argues why he believes the judge made the right decision. The Appellant may reply to the Appellee’s Brief.

Later, there will be an oral argument by the lawyers to the Justices of the Court of Appeals who will decide the outcome of the appeal. Typically, this oral argument will last less than an hour (this is why a Brief is so important).

The Court of Appeals will later make a written decision (called an Opinion). The court may affirm the trial court’s judgment or reverse the judgment, or affirm it in part and reverse it in part. The court may render Judgment for Appellant, or send the case back to the trial court for another trial.

A losing party in the court of appeals may Petition the Supreme Court of Texas to review the case. The Supreme Court grants Petitions for Review in only a small percentage of cases.

There is a lot of information that we did not put in evidence in the trial court that I would like for the court of appeals to consider. How do I do that?
You don’t. The court of appeals makes its decision based on the record made in the trial court. No new evidence can be presented to the court of appeals. An appellate lawyer can be valuable at trial to make sure the record is appropriate for the court of appeals in case an appeal is later needed.

The jury made the wrong decision. Will the court of appeals look at the evidence fresh and make the right decision?
If the jury has decided the facts of the case, the court of appeals can not substitute its fact finding instead. The court of appeals can set aside the jury’s verdict and send the case back for a new trial if it finds that the jury’s verdict on a decisive question was against the “great weight and preponderance of the evidence.” For example, if the jury has found damages to be $10,000, the court of appeals cannot find damages to be $100,000, but it can send the case back for another trial. If the court of appeals finds that there was no evidence at all to support the jury’s verdict on a decisive question, the court of appeals can render judgment in favor of the appealing party, or send the case back to the trial court for a new trial. For example, if the court does not think there is any evidence of damages to plaintiff, it can render judgment for defendant or remand for a new trial.

What are my chances on appeal?
Statistically, the Appellant (the party who files the appeal) has less than a 50% chance to win on appeal. If a jury or judge has decided facts against the Appellant, the Appellant’s chances on appeal are statistically particularly low.

Appellant’s changes on appeal are statistically best if the judge has rendered a Summary Judgment against Appellant and the Appellant is appealing that Summary Judgment. A Summary Judgment may be rendered without a trial if a judge is convinced that there is no evidence in favor of Appellant on fact issues essential to Appellant’s position or if the other party proves its position beyond question.

Of course, your appeal is not decided by statistics, but by how strong your case is. Each appeal must be independently evaluated on its own merits.