What happens after a jury delivers a verdict? After a judge dismisses a case? Litigation at the trial court level is often viewed (and rightfully so) as the “big game” between a plaintiff and a defendant. But once a verdict is issued or a case dismissed, an appellate attorney’s job may only be beginning.
The appellate arena is a different ballpark from the typical “courtroom” setting. There is no jury, witnesses do not testify, and attorneys present their case to a panel of judges. In fact, the Michigan Court of Appeals is currently comprised of 27 judges statewide. Each month, panels of three judges (elected for six-year terms) hear oral arguments in Detroit, Grand Rapids and Lansing. Interestingly, the panels of judges are rotated, and an appellate attorney will not know their panel until approximately 21 days before the argument. In this arena, appellate attorneys must persuade at least two out of the three judges, through written briefs and oral arguments, to rule in their client’s favor.
Not every party is entitled to an appeal, however. Generally, a final judgment or order disposing of all the claims in a case may be appealed by an aggrieved party (i.e., the party whose interests were adversely affected by the order) as a matter of right. Other judgments and orders may only be appealed “by leave,” meaning “with the Court’s permission.” Once a case is properly before the Court of Appeals, appellate attorneys submit written briefs to the Court presenting their client’s position on the facts and/or law and await oral arguments.
Notably, the Court of Appeals is not a litigant’s opportunity to “retry a case.” Rather, it is a court of review. And, depending on the issue appealed, the Court will defer to the trial court to a certain degree on discretionary rulings (i.e., whether evidence is admissible) and on factual findings, with the rationale that a judge or jury is in a better position to weigh the credibility of witnesses before it.
Ultimately, the panel of judges will issue an opinion, in which the decision of the lower court is generally either affirmed or reversed. That ruling may be challenged as well in the Michigan Supreme Court if one of the parties requests permission to appeal. In such instances where leave is granted to the state’s Supreme Court, a similar appellate process – albeit with a panel of the seven Justices – is followed.
Take a recent Court of Appeals case for example. In Blackwell v Franchi, decided on January 31, 2017, the plaintiff was injured when attending a dinner party at the defendants’ house and she fell upon entry to the mud room, which was “very dark” at the time. The plaintiff alleged that there was an eight-inch drop-off into the mud room, which was not discoverable upon casual inspection when she fell. The defendants successfully argued that the drop-off was open and obvious and, therefore, they had no duty to warn the plaintiff of its existence. The trial court dismissed the plaintiff’s case, and the plaintiff appealed as of right. The Court of Appeals reversed the trial court’s ruling in a split 2-to-1 decision. The two judges in the majority found that a jury should decide the issue whether the drop-off presented an open and obvious danger, and they sent the case back to the trial court.
As seen in Blackwell, even upon a verdict or dismissal at the trial court level, the case is not yet “over.” Appellate courts provide a next step in the legal process, giving parties an opportunity to challenge an unfavorable judgment or order. As Yogi Berra would say, “It ain’t over till it’s over,” and with the prospect of an appeal, that “Yogi-ism” seems to hold true.