1 / 14

Appeals

Appeals. Civil Procedure – Mod 7 (Krieger) November 21, 2002. Appeals: The Key Questions. When can an appeal be taken? To what court can an appeal be taken? What issues can be reviewed? What is the scope or standard of review?.

keelty
Download Presentation

Appeals

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Appeals Civil Procedure – Mod 7 (Krieger) November 21, 2002

  2. Appeals: The Key Questions • When can an appeal be taken? • To what court can an appeal be taken? • What issues can be reviewed? • What is the scope or standard of review?

  3. As a general rule, in the federal (and most state) system(s), a party to a civil action can appeal only from a final judgment entered under FRCP Rule 58, or its state equivalent. -- See 28 U.S.C. §1291. When Can an Appeal be Taken?The Final Judgment Rule

  4. Judgment on the Pleadings Judgment following successful Motion to Dismiss for Failure to State a claim, granted w/o leave to amend Judgment entered after successful Motion for Summary Judgment Judgment as a Matter of Law Judgment entered after successful Motion to Dismiss for Failure to Prosecute Order denying Motion to Dismiss for Failure to State a Claim Motions compelling or denying discovery Protective Orders Orders ruling evidence inadmissible or admissible Orders granting or denying class certification Examples of Final vs. Non-Final Orders Final Orders Non-Final Orders

  5. Exceptions to the Final Judgment Rule • The “Death Knell” Doctrine (now dead in federal court, but alive & kicking in some states) • Partial entry of judgment in multi-claim or multi-party actions [Rule 54(b)] • Statutory Interlocutory Appeals • Extraordinary Review (Mandamus) • Various minor judge-made exceptions

  6. Final J. Rule Exceptions:The Death Knell Doctrine The “Death Knell” Rule: An interlocutory order may be subject to immediate appeal if, as a practical matter, it has such tactical or economic significance that it is tantamount to a “death knell” for the case Example: An order denying class certification where individual recovery is too small to justify proceeding The death knell doctrine was rejected by the U.S. Supreme Court in Coopers & Lysand v. Livesay (1978).

  7. Appeals from Partial Judgments • Liberal joinder rules may result in cases ending in “chunks,” party-by-party or claim-by-claim. • Provision made in FRCP Rule 54(b) for partial entry of judgment on fewer than all claims or as to fewer than all parties. • These become “final judgments” for purposes of appeal. • Key question (sometimes): What is a “claim?” • Answer: Same as the res judicata test (which you will learn next week)

  8. Statutory Interlocutory Appeals: By Right (Examples) • Orders granting modifying, refusing, or otherwise affecting injunctions [28 USC §1292(a)(1)] • Orders appointing or refusing to dissolve receiverships, or directing sale or disposal of property [28 U.S.C. §1292(a)(2)] • Showing of immediate, irreparable harm required to obtain interlocutory review

  9. Discretionary Interlocutory Review by Statute Certification Under 28 U.S.C. §1292(b) • District Court certification that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that immediate appeal may materially advance termination of the litigation; • Court of Appeal must agree to take review

  10. Extraordinary Review:The Writ of Mandamus • What is it: A writ ordering a trial court judge to issue an order or perform a duty • Although authorized by federal statute (All Writs Act, 28 U.S.C. §1651) rarely used in federal court • Much more commonly used in some state courts, including California (note Boler v. Superior Court) as a means of reviewing discovery and class certification orders

  11. Appeal to Where? Supreme Court: (Discretionary Review) First Level of Review: (Appeal as of Right) Trial Court

  12. Discretionary Review:Grounds for Certiorari • Inter-circuit conflicts • Conflicts between state supreme courts and circuit courts on federal questions • Interstate conflicts on federal questions • Importance of the issues involved

  13. Requirements for Obtaining Review • Prejudicial Effect of the order appealed from; • Preservation of the issue by objection or opposition in the trial court, unless the plain error rule applies; • Timely filing of a Notice of Appeal; • Designation of the precise issue(s) for review • Compliance w/ other appellate procedural requirements (i.e. posting of required bond, fees;designation of record; timely filing of briefs, etc.)

  14. Standards of Review The Standard of Review Substantial Evidence Arbitrary & Capricious De novo “Clearly Erroneous” Abuse of Discretion Discretionary Orders Q’s of Law; Mixed Qs of Fact and Law Judicial Findings Jury Findings Findings by Agencies The Type of Action Taken Below Appeals Court Expertise Trial Court or Agency Expertise

More Related