The Appellate Process
The state and federal court systems have at least two levels of courts. At the
first level are the trial courts. The higher levels review the decisions of the
trial courts. Most of the written legal decisions come from these higher-level
courts. The major problem is that more than 90 percent of lawsuits are settled
before trial, and many of those that are tried are settled before a final
verdict. Among those that are tried, only a small number are reviewed by higher
courts. Cases become the subject of higher court review because they represent
a departure from accepted law, they involve peculiar facts, or counsel made an
error preparing or presenting the case. Even when a case is reviewed, the
higher court may choose to uphold the trial court without an opinion. The
tendency is for courts to write detailed legal opinions only when they are
modifying the law.
Good law can be lost because it is so well accepted that no court bothers to
write about it. The most striking example of this is in public health law. Most of the public health precedents for
quarantine and personal restrictions were set many years ago. Civil rights
activists have convinced most public health officials that these precedents are
no longer valid. As a result, they have not exercised their authority to
restrain individual liberties to prevent the spread of disease. In some cases,
carriers of diseases such as drug-resistant tuberculosis have been allowed to
remain in the community. (See Chapters 20 and 21.) When health authorities do
act, even long-delayed and controversial actions, such as closing gay
bathhouses, are readily accepted by the courts.
The appellate process is lengthy. In many urban jurisdictions, it takes years
to get a case to trial and nearly as long to appeal the case to a higher court.
Rarely is a legal issue reviewed by a higher court in less than five years.
Eight to ten years is much more likely, with complex cases often appearing to
be immortal. Cases involving the internment of the Americans of Japanese
ancestry were still on appeal after forty years.
When the court rules, the opinion is often peripheral to the legal conflict
that resulted in the litigation. This is especially common in medical
jurisprudence. In the Cruzan v. Director, Missouri Dept. of Health
(1990) case, which dealt with a family's right to terminate a patient's life
support, the court made a narrow ruling on the right of a state to set
evidentiary standards. (See Chapter 13.) Many landmark civil rights cases turn
on arcane questions about the procedure of determining whether federal or state
law applies in a given case.
Richards EP: The jurisprudence of prevention: Society's right of
self-defense against dangerous individuals. Hast Const LQ 1989; 16:329.
City of New York v. New Saint Mark's
Baths. 497 NYS2d 979, 983 (1986).