Submissions and evidence

Submissions process

What is the briefing and argument process like in a typical commercial appeal?

The appellant files a principal brief, which is generally limited to 13,000 words. The appellee files a responsive brief, also generally limited to 13,000 words. The appellant files a reply brief, generally limited to 6,500 words. The court may decide the appeal on the basis of the briefs, or it may hear oral argument (usually limited to 10 to 30 minutes per side). In the regional courts of appeals, arguments are made to three-judge panels; in the Supreme Court, all nine Justices participate. Oral arguments in federal appellate courts are typically question-and-answer sessions between the judges and counsel, rather than ‘arguments’ in the traditional sense. No witnesses are called and no evidence is introduced. Rather, appellate counsel present the case on behalf of their clients, and the judges typically ask questions of both sides.

New evidence

Are appeals limited to the evidentiary record that was before the trial court, or can new evidence be introduced on appeal?

Appeals are generally limited to the evidentiary record that was before the trial court. The most significant exception pertains to information of which an appellate court may take ‘judicial notice’, which means that it is readily available and not reasonably subject to dispute. For example, an appellate court may take judicial notice of newly enacted legislation.

New evidence of wrongdoing

If litigants uncover new evidence of wrongdoing that they believe altered the outcome of a trial court judgment, can they introduce this evidence on appeal?

New evidence must usually be raised in the trial court (on a motion to reopen the judgment), rather than on appeal.

New legal arguments

May parties raise new legal arguments on appeal?

In general, parties are limited to the legal arguments that were made or decided in the trial court. The appellate court has discretion to consider purely legal arguments made for the first time on appeal.