Frequently Asked Questions

What are appellate courts?

An appellate court reviews the decisions of lower courts. Appellate judges interpret and explain the meaning of our laws, including our legal rights and protections. Some of these laws, such as a constitution, statute, treaty, or regulation, are created by other branches of government. Another source of law is found in cases decided by appellate courts.

An appellate court can reverse (overturn) a decision made by a lower court that it finds incorrect, or affirm (uphold) if it concludes the decision was correct. The lower court has to follow its ruling.

The Supreme Court of the United States is the highest appellate court in the country.

Why can appellate cases have such a far-reaching impact?

An appellate court consists of a group of judges who decide matters of law. That means they decide if the trial court correctly applied the law, whether that law is established in the constitution, a statute, a regulation, prior court decisions, or some other source of law. Unlike trial courts, appellate courts have no juries.

An appellate court’s decisions can have a far-reaching impact because they establish legal precedent that governs the decisions of all lower courts required to follow its rulings. In other words, a lower court must interpret the law consistent with the appellate court assigned to review its decisions—now and in future cases.

Other courts, judges, attorneys, corporations, and government officials, who may not be required to follow the decisions of a particular appellate court, also look to these decisions to inform their own interpretations of the law.

How does the federal appellate court system operate?

The highest appellate court in the country is the Supreme Court of the United States, and its decisions are binding on all state and federal courts.

In the federal court system, a party who loses in the trial court has the right to file an appeal in the federal Court of Appeals with authority (called “jurisdiction”) to review the trial (also known as “district”) court’s decision. There are 13 federal Courts of Appeals, each referred to as a “circuit.” Twelve circuits are organized by geographic region and one—the Federal Circuit—has nationwide jurisdiction over cases dealing with specific subject matters (e.g., patents, veterans’ affairs, civil service claims).

Appellate courts issue decisions that form legal precedent that governs the decisions of lower courts within its jurisdiction. For example: The Eighth Circuit has jurisdiction over all federal trial courts in Minnesota, North Dakota, South Dakota, Nebraska, Indiana, Missouri, and Arkansas. That means those courts must obey the Eighth Circuit’s decisions, and decide cases consistent with its interpretation of a law.

Courts outside of the Eighth Circuit’s jurisdiction are not required to follow its precedent, but may rely on the Eighth Circuit’s ruling as persuasive authority when deciding how to resolve the same legal issues. For example: A district court in New York is within the Second Circuit, so it is not required to follow Eighth Circuit precedent. If the Eighth Circuit has decided a legal question that has not yet been decided by the Second Circuit, however, the New York district court may be persuaded by the Eighth Circuit’s reasoning and follow its decision. And if the district court’s decision is appealed, the Second Circuit will carefully consider the Eighth Circuit’s decision in resolving the same legal question.

What is the role of the Supreme Court of the United States?

A party may try to appeal a decision from a Court of Appeals to the Supreme Court of the United States, which is the nation’s highest appellate court. Unlike the Court of Appeals, which must decide every case appealed to it, the Supreme Court has discretion to choose which cases it hears.

The Supreme Court typically accepts fewer than 100 of the 10,000+ cases it is asked to review each year. This means that in the vast majority of cases, Courts of Appeals make the final decision on what our laws mean and how they apply to us.

How does the state appellate system operate?

Federal courts have jurisdiction over limited subject matter, which means there are many issues they cannot decide—including most matters governed by the laws of a state (rather than federal law). How state appellate courts interpret those laws can have huge consequences for people living there.

Each state has its own judicial system, featuring trial courts, courts of appeal, and a supreme court (learn more). Unless state law is superseded by a federal statute or the U.S. Constitution, the decisions of state appellate courts govern the interpretation of that state’s law–and state law may provide greater protections for individual rights and liberties than federal law provides.

What do appellate attorneys do?

Appellate attorneys specialize in reviewing the decisions of lower courts to determine whether a significant error occurred. They formulate legal arguments to persuade an appellate court to reverse (overturn) or affirm (uphold) the decision of the lower court. These arguments are presented in written legal briefs and oral presentations to a panel of judges.

Appellate courts make decisions that establish the meaning of the laws that govern every aspect of our lives. And those decisions depend on the arguments made and facts presented by appellate attorneys.

Appellate work is often a stepping stone to other prestigious, influential opportunities, such as becoming a judge.

How does someone become an appellate attorney?

There are many paths to appellate practice. The most common route begins with an appellate judicial clerkship. An appellate law clerk works with an appellate judge, usually for a single year. A law clerk typically reviews brief, conducts legal research, summarizes the parties’ arguments and the applicable law in a written memoranda, discusses cases with the judge and co-clerks, suggest questions to ask during oral arguments, drafts opinions, and reviews the draft opinions of other judges. This experience develops the analytical and expressive skills critical for appellate advocacy and provides valuable insight into how appellate courts decide cases.

Some other paths include service in the appellate division of a government agency or a public defender’s office (state or federal), which guarantees an attorney will be assigned primary responsibility for brief writing and oral argument. Advocacy organizations that do impact litigation may also provide appellate opportunities.

In addition, working in the appellate practice of a private law firm provides valuable training and supervision by experienced appellate practitioners. Junior attorneys can also obtain primary brief-writing and oral argument experience by accepting court appointments to represent clients pro bono.

What can I do in law school to prepare for an appellate career?

There are many ways to develop appellate-related skills while in law school:

• Ask questions. It can be intimidating to express an interest in appellate work, especially when you don’t see others like you in this field, but it is important to ask for guidance when you need it. Take advantage of your law school’s networks, including professors, career services office, clerkship office (if available), and alumni to ask questions and obtain the resources you need.
• Develop your legal research and writing skills. Practice as much as possible. Legal research and writing are the foundation of appellate work. Ask your law school about the different opportunities available and seek out as many as you can, including through clinics, internships/externships, and law school courses with substantive writing opportunities.
• Read. You’ll be doing a lot of this in law school, but pay particular attention to good writing—legal and non-legal.
• Get to know your professors. Professors can be invaluable resources, including mentors, and often provide recommendations for clerkships and other job opportunities. Take advantage of office hours and other opportunities to connect outside of class, including serving as a research assistant.
• Build your network. The appellate field is relatively insular, so be proactive to build your network in this space. That includes taking advantage of opportunities to get to know appellate practitioners, such as through The Appellate Project’s programs or by reaching out directly to an attorney for coffee.
• Academic courses. Federal Courts and Appellate Procedure are elective courses that provide useful background knowledge for appellate practice. Other courses are instructive for particular clerkships. For example, if you want to clerk on the D.C. Circuit, take Administrative Law; if you want to clerk on the Federal Circuit, take Patents.
• Clinics. Appellate clinics and experiential classes allow students to work on actual cases while in law school. They provide a great opportunity to develop appellate advocacy skills early on.
• Moot Court Competition. Moot court competitions enable students to develop their legal research, writing, and oral advocacy skills by participating in a simulated legal proceeding.
• Appellate-focused internship/externship. Look for opportunities with appellate judges or organizations that do appellate work.
• Law school journal or law review. You’ll develop some of the foundational skills you need for legal writing, including familiarity with the Bluebook (a set of rules for citation of legal authority). Employers, particularly judges, often place high value on this experience.
• Prepare for clerkships. Clerking with a judge is a stepping stone to appellate practice. You can apply for clerkships while still in law school or after working for a few years; either way, taking the steps outlined in this section can help you build a stronger application.

What are some different types of appellate practice?

Some common routes include:

Public Practice

• Government - State and Federal
• Civil Enforcement & Defense (Federal Department of Justice and & State Offices of Attorneys General)
• Criminal Prosecution (U.S. Attorney Offices and State District Attorney Offices)
• Criminal Public Defender – State and Federal

Private Practice

• Commercial law firms (appellate practice section or appellate boutique)
• Nonprofit advocacy organizations