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Appealing a Verdict in a Medical Malpractice Action

Appealing a Verdict in a Medical Malpractice Action

Despite the best efforts of your attorneys, the jury in your medical malpractice action ruled in favor of your physician. In your anger and disappointment, you want to appeal the decision immediately.

Some states have only a two-tier system, which takes a challenge from a trial court directly to the state supreme court. However, most states have a three-tier system. From the lower trial court, an appeal is heard in an intermediate appellate court. Depending on the circumstances, further appeal may be taken to the state supreme court if that court grants permission for the review. In most cases, review by a state supreme court is the final avenue for challenge. The United States Supreme Court can only review cases that raise some federal or constitutional law issue. Cases that only concern an issue of state law are beyond the Supreme Court’s jurisdiction.

There are many important differences between a trial in a lower court and an appeal. During the trial, both sides present evidence and experts to testify on their behalf. It is the job of the jury to weigh the evidence and to conclude what they believe actually happened, referred to as the facts of the case. While the jury is determining the facts of the case, the judge is controlling the courtroom activities and making all required legal decisions, such as whether certain evidence is admissible. Therefore, the judge is called the finder of law, while the jury is referred to as the finder of fact. If there is no jury, the judge is both the finder of fact and the finder of law.

The most important and often misunderstood fact in the appeals process is that under most circumstances, the unsuccessful litigant will not be able to retry the facts of the case. The appellate court will accept the facts as there were decided in the trial court unless a factual finding is clearly against the weight of the evidence. The job of the appellate court is to review the trial court’s application of the law. In an appeal, neither side will be allowed to present witnesses or other forms of evidence. There is no jury in an appeal. If the appellate court concludes that an error in the application of the law contributed to the decision, the appeals court will reverse the decision and send the case back to the lower court either for the decision mandated by the appellate court or for a new trial.

The main form of persuasion on appeal is the written appellate brief. Each side submits a brief to the appellate court, with the losing party claiming that the judge incorrectly applied the law and the winning party stressing the correctness of the judge’s decisions. Attorneys for each side will support these arguments with statutes and prior case law. In some appeals, the attorneys for each side are permitted a short time for oral argument, during which the appellate judges often question the attorneys about their positions.

Appellate decisions are made based on the lower court record, which documents what actually occurred during the trial. The record contains the plaintiff’s complaint and the defendant’s answer, pretrial motions, and any discussions with the judge that were not “off the record.” The appellate court generally will not review any issue, no matter how critical, if it does not appear in the record.

Copyright 2014 LexisNexis, a division of Reed Elsevier Inc.

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