Final judgments and the exceptions that allow an earlier appeal, preserving an issue, the standards of review and why they usually decide the case, assembling the record, brief requirements, oral argument, rehearing, and further review.
Federal Rule of Appellate Procedure 10(a) defines the record on appeal as the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries. Rule 10(b) requires the appellant to order a transcript or certify that none will be ordered, and to serve a statement of issues where only part is ordered. Rules 10(c) and 10(d) supply a prepared statement or an agreed statement where no transcript is available.
Federal Rule of Appellate Procedure 40 allows a petition for panel rehearing stating with particularity each point of law or fact the petitioner believes the court overlooked or misapprehended. Rule 35 governs rehearing en banc, which is not favored and is ordered only where necessary to secure or maintain uniformity of the court's decisions or where the proceeding involves a question of exceptional importance. Rule 41 controls when the mandate issues and how it may be stayed.
Federal Rule of Appellate Procedure 28(a) lists what an appellant's brief must contain, including a corporate disclosure statement, tables, a jurisdictional statement, a statement of the issues, a statement of the case with record references, a summary of the argument, the argument itself with the standard of review for each issue, a conclusion, and the required certificates. Rule 32 governs form, typeface and the word limits, and requires a certificate of compliance.
Federal Rule of Appellate Procedure 3 requires an appeal as of right to be taken by filing a notice of appeal with the district clerk, specifying the party appealing, designating the judgment or order appealed from, and naming the court to which the appeal is taken. Rule 4 fixes the time: thirty days after entry in an ordinary civil case, sixty days where the United States or a federal officer or agency is a party, and fourteen days for a criminal defendant.
Appellate courts review questions of law without deference, findings of fact for clear error under Federal Rule of Civil Procedure 52(a)(6), and discretionary rulings for abuse of discretion. A mixed question applies a legal standard to established facts, and courts allocate it by asking whether resolving it requires expounding the law or immersion in the particular record. The more legal the inquiry, the closer review comes to de novo.
Section 2111 of Title 28 directs the courts of appeals to give judgment without regard to errors or defects that do not affect the substantial rights of the parties, and Federal Rule of Civil Procedure 61 and Federal Rule of Criminal Procedure 52(a) state the same rule. In civil cases the appellant generally must show that the error probably affected the outcome. For preserved constitutional error in a criminal case, the government must show the error was harmless beyond a reasonable doubt.
Under 28 U.S.C. 1254 cases in the courts of appeals may be reviewed by writ of certiorari granted on the petition of any party, and under 28 U.S.C. 1257 final judgments of the highest court of a state may be reviewed where a federal question is presented. Review is discretionary. The considerations governing it include conflict among the courts of appeals, conflict with a state court of last resort, a departure from the accepted course of proceedings, and an important unsettled federal question.
Under 28 U.S.C. 1291 the courts of appeals have jurisdiction over appeals from all final decisions of the district courts. A decision is final when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Section 1292 supplies interlocutory jurisdiction over injunctions, receiverships and certain admiralty orders, and permits a certified question with the consent of both courts. Rule 54(b) allows entry of judgment on fewer than all claims or parties.
Federal Rule of Criminal Procedure 52(b) permits a court to consider a plain error that affects substantial rights even though it was not brought to the trial court's attention, and Federal Rule of Evidence 103(e) states the same power for evidentiary rulings. The standard has four parts: there must be an error, it must be plain, it must affect substantial rights, and the court must decide that the error seriously affects the fairness or integrity of judicial proceedings.
Federal Rule of Evidence 103 conditions a claim of error on a timely objection stating the specific ground where evidence is admitted, or an offer of proof showing the substance where evidence is excluded. Federal Rule of Civil Procedure 51 requires an objection to jury instructions before the instructions and argument are delivered, stating the matter objected to and the grounds. Rule 46 makes formal exceptions unnecessary provided the party states the action sought and the grounds.
Federal Rule of Appellate Procedure 34 provides that oral argument must be allowed in every case unless a panel of three judges unanimously agrees that argument is unnecessary because the appeal is frivolous, the dispositive issue has been authoritatively decided, or the facts and legal arguments are adequately presented in the briefs and the record and the decisional process would not be significantly aided by argument. The court advises the parties of the date and the time allowed.
