Appeal Flashcards
WHO CAN APPEAL
losing party; cross-appeals; waiver
When can an appeal occur?
after final judgment
Final Judgment Rule
A final judgment is “one which ends the litigation on the merits and leaves nothing for the court to do but to execute the judgment.”
Wetzel
Gender discrimination case (prego lady fired). Pl sought $ damages, lawyers fees, and injunction. Granted partial summary j on the issue of liability. Other side appeals though during trial, saying no jurisdiction. Received an interlocutory (not a final order) from judge.
Why have Final Judgment Rule
Efficiency: most appeals are unworthy; piecemeal appeals would slow down the trial courts; it’s better to hear appeals in the fuller context of the case
Costs of the FJR
- Efficiency: if trial court got it wrong, could be expending unnecessary resources
- Justice: most trial court orders will never get to be appealed b/c of settlement
notice of appeal
a piece of paper that: states the name of the party who is appealing the decision; states the order or judgment that is being appealed; and names the court to which the appeal is being taken. Fed. Rule Appellate Procedure 3(c)(1)
Exceptions to Final Judgment Rule
Collateral order doctrine;
28 U.S.C § 1292(a): a. the courts of appeals shall have jurisdiction of appeals from: (1) interlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions. . .
Rule 54(b): allowed when multiple claims and parties
§ 1292(b): certification of the question for appeal
Mandamus: All Writs Act; 28 U.S.C § 1651(a)
Minimum Essential elements of the collateral order doctrine:
i. The order must “conclusively determine the disputed question”;
ii. The order must “resolve an important issue completely separate from the merits of the action”;
1. A right is “important” when it is “sufficiently important to overcome the policies militating against interlocutory appeals”. (Scalia concurrence)
iii. The order must be “effectively unreviewable on appeal from a final judgment.”
1. An order is “effectively unreviewable” when “the order at issue involves an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.”
Winning an appeal:
clearly erroneous or harmless error
clearly erroneous
A finding of fact is clearly erroneous when: “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”
i. Continuum: 1 (no evidentiary basis), 5 (toss up); 10 (strong evidentiary basis)
Anderson
i. Ms. Anderson better qualified than Mr. Kinkead.
ii. Male committee members biased becase a committee member said it would be “real hard for a woman to do job and wouldn’t want his wife to do the job”
iii. Ms. Anderson alone was asked whether her husband approved of her applying for the job.
iv. The reasons offered for choosing Kinkead were pretext (e.g., degree in phys. Ed. Was not real reason they chose him)
