Before reviewing the steps one should take to evaluate an appeal of a lower adjudicator’s decision, it is important to note that an appeal is almost never a re-trial. Meaning, rarely does an appeal provide you with an opportunity to retry the facts of the case.
In actual, judicial branch, court proceedings, “rarely” becomes “never.” It is neither the appellate court’s function nor interest to re-examine and re-weigh evidence. This includes re-determining the credibility of witnesses or performing any other review of fact-based questions. Most importantly, this means that an appellate court appeal is not an opportunity to present more, different, or better evidence or arguments. If a party could have presented additional evidence or an alternative argument at the lower court but did not, the appellate court will typically not consider it.
Rather, the function of an appeal is to correct errors made by the trial court. The appellate adjudicator reviews the initial adjudicator’s – whether it was a hearing officer, arbitrator, or trial court, or otherwise – proceedings to decide whether an error occurred. In addition, the appellate adjudicator will then determine whether the error is of the type that warrants reversal of the judgment.
A common misconception is that the appellate adjudicator will reverse if it finds any error in the prior proceedings. This is incorrect. All lower-level proceedings and trials contain some error. Appellate adjudicators begin with the presumption that the decision or judgment is correct, and is considering whether any identified errors rises to the level of a prejudicial error or that the adjudicator rendered a finding in the absence of any substantial evidence. In general, a prejudicial error means that the error must have affected the appellant’s right to a fair determination of his, her, or it’s claim. And substantial evidence means relevant evidence, in an amount more than a mere scintilla, that a reasonable mind might accept as adequate to support a conclusion.
The appellate examination is within a framework that generally favors affirming the actions of the prior adjudicator. For example, if the evidence is close on a disputed issue and the trial court erroneously excluded relevant and admissible evidence on that issue, the error may result in a reversal. Then again, even if a trial court committed prejudicial error, the court of appeal may nonetheless decline to consider it when an appellant waived the error in the court below by not objecting at that time. Similarly, the burden of proving prejudicial error is on the appellant. This means that we must convince the appellate court, by stating law and bringing portions of the facts to the appellate court’s attention, that the trial court’s decision contained prejudicial error.
With that in mind, here are 8 steps to take for evaluating a potential appeal:

1. Determine the statute of limitations of the appeal.

Most appeals have very, very short deadlines – 10 to 60 days. So, the first step is always to determine the deadline of your appeal. If it has already lapsed, then you will need to see whether there is a method to file a late appeal or some other pathway to extraordinary relief.

2. Determine the scope of filing the appeal.

This works hand-in-hand with determining the statute of limitations. In addition to determining when to file, you need to find out what you need to file. Sometimes, the filing of the appeal is merely procedural; you are merely noticing the adjudicator and your opponent that you are preserving your appeal rights. In those instances, the substantive investigation and resulting argument concerning the appeal is conducted sometime thereafter. However, in other areas of administrative law, the procedural is combined with the substantive, and you are expected to detail all of your arguments on appeal in your initial filing. And with a short statute of limitations, this could present real challenges for your and your attorney.

3. Identify a rule or ruling that might provide the basis for an appeal.

Next, you need to identify what justifies the appellate level to overrule the initial adjudicator. As alluded to above, you cannot appeal a decision just because you do not like it. There must be a valid reason for you to appeal. Being mad at the result, the adjudicator, or the other side is not enough and one can be punished merely for filing a “frivolous” appeal. So, one must examine the decisions and rulings made by the initial adjudicator to identify mistakes. Another good source of potential grounds for an appeal can also be found by examining the “rules of the game.” You may have been put into a situation where the framework of the initial adjudication violated your due process rights or provided a distinct advantage to your opponent. That could also be a ground for an appeal. Finally, look to any advantages that your opponent had going into the hearing – i.e. selection of the adjudicator; access to all witnesses, etc.  Those inherent advantages may also have violated your due process rights and provide you with the grounds for an appeal.

4. Research the substantive law to confirm that the issue was improperly decided at the trial court.

Next, you have to find the law that supports your assertion that a rule, ruling, or opponent advantage gives you grounds for an appeal. The appellate adjudicator does not care if you think something was unfair. Rather, what they care about is whether legal precedent has demonstrated that something which took place in your initial hearing was unfair and to the point it could warrant overruling the initial adjudicator.

5. Ascertain the standard of review that applies to that ruling.

There are a variety of standards of review that can be used on appeal. Five common standards are:

    • De Novo. This is a Latin phrase meaning “from the beginning.” In de novo review, the appellate court does not defer to the decisions made in the trial court and looks at the issue as if the trial court had never ruled on it. This type of review is generally limited to issues involving questions of law, as opposed to questions of fact.
    • Abuse of discretion. Any decision that involves the initial adjudicator using his or her discretion (such as whether to admit certain evidence in the trial) comes under this standard. Abuse of discretion occurs when a ruling on evidence or testimony is inconsistent, arbitrary, or absurd.
    • Substantial evidence. This occurs when the argument is made that the record does not support the ruling. The appellate adjudicator then reviews the record to see if it can find substantial evidence. It does not, however, determine whether it would have reached the same factual conclusions as the judge or jury. The appellate court just decides whether a reasonable fact-finder could have come to the same conclusion based on the facts in the record.
    • Independent judgment. This occurs when the appellate court does re-apply the facts to the law. It is rare. The initial adjudicator’s credibility determinations and findings of fact are still binding on the reviewing court, but whether those facts satisfy the rule of law is independently reviewed and adjudged.  Also known as the sufficiency of the evidence.
    • Plain Error. Applied only in exceptional circumstances, this standard of review applies to review errors not objected to at the initial adjudication if such errors are extremely unjust or unfair. Plain error is limited to error that is evident, obvious, and clear, resulting in sufficient prejudice to the appellant to put the ultimate decision in doubt. It is not used when the error is deemed harmless or a result of the appellant’s own acts or omissions (i.e. doctrine of invited error).

6. Analyze the ruling under that standard of review.

Using the appropriate standard of review, then apply the specifics of your ruling. Is the prejudice sufficient to put the result in doubt? Are you relying upon a different credibility or finding of fact? Did the initial adjudicator’s abuse of discretion result in sufficient prejudice? Is this a question of law or a mixed question of law and fact?

7. Examine the ruling in the context of the entire case to evaluate the extent to which it affected the outcome.

Correcting an erroneous ruling, rule, or advantage also has to be weighed against the totality of your matter. As detailed above, was the prejudice absorbed by the appellant sufficient to put the result in doubt? That is the second prong of the appellate adjudicator’s function. Just because the trial judge erroneously sustained an objection to testimony that should have been permitted, does not necessarily mean that it will be enough to merit overturning the result.

8. Ascertain the relief the appellate court can grant, if appropriate.

The big question is, “if you win on appeal, what do you get?” It is rare than a successful appeal results in the appellate adjudicator ruling-by-fiat that you win the legal dispute. Rather, more often than not, it is sent back to the initial adjudictator to reconsider the matter in light of the correction on appeal. This could result in a re-written decision, assignment to a new arbitrator, trial judge, or administrative law judge for a rehearing, or a completely different form of dispute resolution being used.
Do not ignore the importance of the last step! It means that all your appeal may have done is give you a chance to pay more money to your attorneys! You need to know what the likely result is and then, if the matter goes to another hearing, what the likelihood is that you will prevail after re-hearing on the underlying dispute. What good is an appeal if all it means is a different pathway to the same result?