How is an Appeal Different from a Trial?

Appeals are very different from trials. The procedure is different and the nuts and bolts are different. In an appeal, you don't get to introduce new evidence. There are no witnesses. It's not a fact finding court. It is an error correction court. It's a court intended to correct legal errors that occurred in the trial proceedings.

Two really important considerations:

In the appellate court, you're bound by the record and the standard of review. The record is all of the things that happened at trial - all the motions, the orders, the transcripts. There are NO new facts in appeal. There is only what's in the record. The court of appeals can only consider what's in the record from the trial court. And that also means you CANNOT raise new arguments in the court of appeals.

Likewise, the standard of review is an important consideration in an appeal. That is the lens through which the court views the case, or the standard by which they can reverse the case. Those range from very deferential to the trial court, to not deferential at all, where the court of appeals can take, essentially, a fresh look at things. It's very important to have, on an appeal, an attorney who's experienced and knowledgeable about the appellate process, because it's a very different procedure. It works differently than a trial.

On our team, we have a bunch of former appellate clerks who are very familiar with the appellate process. If you're going to embark on an appeal, it's critical that you have somebody familiar with that process because a trial and an appeal are two very different animals.

[GenosideTV]

😂😂😂 Saying you can't raise new arguments in the appeals court is a violation of the Constitution..

The right to access the courts and seek redress for grievances is protected by the First Amendment and various state constitutional provisions. If the preservation requirement operates as an insurmountable barrier to presenting a legitimate constitutional claim on appeal, it could be argued that this infringes on the individual's right to access the courts and obtain a remedy for constitutional violations.

In some cases, the failure to raise an argument at the trial court level may be due to factors beyond the litigant's control, such as ineffective assistance of counsel, the discovery of new evidence after the trial or orders from the court. In these situations, a strict application of the preservation requirement could be seen as fundamentally unfair and contrary to the principles of justice and equity that underlie the constitutional right to a fair trial.

If the trial court committed a clear and obvious error that affected the litigant's substantial rights and seriously impacted the fairness, integrity, or public reputation of the judicial proceedings, the appellate court may consider the issue under the "plain error" doctrine, even if it was not raised below.