Civil Procedure II


An appeal is a timely resort by an unsuccessful party in a lawsuit to an appropriate superior court empowered to review a judgment or final decision.


For a person to appeal, he must have suffered an "adverse judgment" or be "adversely affected".

Adverse Judgment

An adverse judgment is a judgment for the other party or one that grants a type of relief different from that requested.

  • E.g., less money was awarded than requested or money damages were granted instead of an injunction.
  • The determination is result-based. If two causes of action or defenses would give the same outcome, it cannot be appealed if one prevails but not the other. If causes of action award different amounts of damages, it can be appealed if the cause of action with greater damages is rejected.

Getting less damages than sought can be enough to qualify a judgment as adverse, but it must be substantial.


During the losing party's appeal, the prevailing party can cross-appeal alternative issues that it lost on to support the judgment should the issue being appealed be reversed.

The appellee can make any argument to support the court's decision, unlike usual appeals, but new evidence cannot be introduced.


An appellant cannot raise arguments on appeal (to attack the court's ruling) that he did not raise below.


Generally, if circumstances have changed so that relief is no longer available, the case is moot and there is no longer a case or controversy for the court to address.

The exception is if the case is "capable of repetition, yet evading review."

Plain Error

The failure to raise an objection will act as a waiver on appeal unless the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.

It is extremely rare in a civil case, but in limited situations an appellate court can still hear an objection on appeal that was not preserved.

The legal standard tested is whether it is needed "to prevent manifest injustice."

Final Judgment

A final judgment is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.

With limited exception, only a final judgment is appealable.

Interlocutory Order

An interlocutory order is an order or judgment that does not determine the plaintiff's primary claim(s), but directs some further proceeding in the process of leading to a final judgment.

Exceptions to the Final Judgment Rule
Collateral Order Doctrine

An interlocutory order is appealable under the collateral order doctrine if it meets three conditions:

  1. It conclusively determines the disputed question.
  2. It resolves an important issue completely separate from the merits of the action.
  3. It must be effectively unreviewable on appeal from a final judgment, as the right asserted would be essentially destroyed.

The collateral order doctrine is extremely rare.

FRCP 23 & 54

One has 14 days to appeal whether certification of a class action was granted or not. Rule 23(f).

When there are multiple claims, one can appeal a final ruling on the entirety of a discrete claim if the court determines there is no just reason for delay. Rule 54(b).

28 U.S.C. § 1292(a)

Interlocutory decisions

View on Legal Information Institute

  1. Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:
    1. Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;
    2. Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property;
    3. Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.
28 U.S.C. § 1292(b)

Interlocutory decisions

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  1. When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

Mandamus is not an appeal but a separate proceeding against a public official, such as a judge, to require him to perform an act required by law.

Mandamus is only granted in exceptional circumstances that amount to a judicial usurpation of power. One must show a refusal to act as required by law.

Writ of Prohibition

A party can ask a superior court to order a lower court to refrain from doing something that would exceed its authority or abuse its discretion.

Even if a trial court certifies an order for appeal, the party must actually appeal within 10 days and it is up to the discretion of the appellate court to take the appeal.

A notice of appeal must be filed with the district court clerk. Federal Rule of Appellate Procedure 3.

An appeal must be filed within 30 days from the entry of judgment (60 if the US government is a party). Federal Rule of Appellate Procedure 4.

Scope of Review

As a general rule, appellate courts will only correct errors where they are convinced that the error likely changed the outcome of the case.

Questions of law are reviewable de novo.

Questions of facts decided by the court are reviewable for clear error.

Matters of discretion are reviewable for abuse of discretion.

Mixed questions of law and fact and generally reviewed according to the predominate issue's standard.

Clear Error

A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

A judge's choice between two permissible views of the evidence cannot be clearly erroneous.

A jury's determination of facts cannot be reviewed.

  • However, a jury's special verdict can be relied upon to make changes.
Abuse of Discretion

How abuse of discretion is defined will depend on the jurisdiction.

  • Decision “was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment”
  • District court “made a clear error of judgment ... or ... applied an incorrect legal standard.”
  • “A definite and firm conviction that the trial court committed a clear error of judgment”
  • "Failing to exercise a sound, reasonable discretion"
  • Decision was "not justified by and clearly against reason and evidence"
Harmless Error

An appellate court cannot reverse and order/decision for errors not affecting the substantial rights of the parties. 28 U.S.C. § 2111.

The harmless error doctrine also applies to the trial court granting a new trial or setting aside a judgment.