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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.[1] 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 Civil rights activists have convinced most public health officials that these precedents are no longer valid.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.[2]

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.

[1]

Richards EP: The jurisprudence of prevention: Society's right of self-defense against dangerous individuals. Hast Const LQ 1989; 16:329.

[2]City of New York v. New Saint Mark's Baths. 497 NYS2d 979, 983 (1986).


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