Civil Appellate Services in Colorado

Grounds for Appeal: What Errors, Mistakes & Matters Can Be Challenged or Appealed?

There are many grounds on which a person might be able to appeal her or his case.  For a general discussion on appeals, see my post on appellate law.

When analyzing the strength of a potential ground for appeal—that is, the likelihood you will succeed—there are two primary considerations.  First, you must consider the underlying legal argument specific to your case.  Naturally, the specific details of an appeal changes from case to case.  This requires a review of the specific law and facts in your case.

The general nature of your appeal, however, has a massive effect on the likelihood for success.  Grounds for appeal come in many shapes and sizes: from challenging the way a judge interpreted specific language in a specific law, to arguing the judge’s operation of the trial was impermissible, to arguing the facts at trial did not support the verdict.  It is important to carefully choose the grounds for appeal because not all grounds are treated equally.  The primary types of appeals are discussed below:

Challenging a court’s interpretation of the law

Consider a situation where you ask an appellate court to review (i.e. reconsider) how a trial judge interpreted the law.  Imagine you work with a company as an independent contractor.  You are a truck driver who operates your own trucking business and drives routes for a specific company.  You are fired due to your race, gender, or because you blew the whistle on some illegal practices of that company that were putting the public in danger.  The company argues that the law doesn’t allow it to fire employees (a legal classification) for those reasons, but that same law doesn’t apply to independent contractors (who have more freedom than employees in deciding how to perform their jobs).

That issue is a purely legal question: does that law apply to independent contractors?  Put another way, did the legislature write the law in a way where it was intended to protect to independent contractors, or just employees? (For a specific example, read my wrongful termination case study.)

For purely legal questions like that, the appellate court considers that issue de novoDe novo basically means “like new” or “as if it were the first time.”  The appellate court will consider the issue and choose what it believes is the right answer—i.e. the correct way to interpret the law.  Although the appellate court will read the trial judge’s reasoning, that reasoning receives no special consideration.  The arguments you or your lawyer make on how to interpret the law have just as much sway with the appellate court as what the trial judge believed.

Thus, if you can convince the appellate court your interpretation is better, even slightly, than the trial court’s interpretation, you win.  The ultimate strength of your appeal depends on how good your arguments are—i.e. whether the language of the law supports your interpretation.  This de novo or “clean slate” standard of review affords you the best chance of winning your appeal—because the appellate court considers all legal arguments equally, giving no preference to the trial judge’s opinion.

Challenging a court’s view of the facts

But your appeal may not challenge how the law was interpreted.  Previous court decisions or the language of the law itself might make its interpretation in your case very clear.  Instead, you may believe that the trial judge or jury misinterpreted the facts—i.e. the details of what happened to you.

For example, a police officer knocks on your door.  She asks if she can search your home.  Not wanting a stranger to walk through your home, you say she cannot without a search warrant.  She pushes you into your home, handcuffs you, and searches your house anyway.

Feeling violated, scared, and angered by what the officer did, you sue to stop this from happening to others.  At trial, the judge instructs the jury that, if the officer did not have a warrant or some other legal basis to enter and search your home, the officer violated your constitutional rights.  There is no evidence at trial that the officer had a warrant or any justification to enter.  However, the jury has several individuals who feel, if you had nothing to hide, you shouldn’t have objected to an officer randomly searching your home because she felt like it.  As a result, the jury finds in favor of the police officer, ignoring what the law requires.

You appeal, arguing that the jury had no factual basis to find for the police officer.  The appellate court will look at whether the jury’s decision was supported by the record.  This is sometimes called a “clearly erroneous” standard.  What that means is, you only win your appeal if you can show the court that nothing in the record supported the jury’s (or judge’s) factual determination.  In the above example, you would win your appeal because there were no facts that could have led a reasonable jury to conclude the officer was allowed to do what she did.

In comparison, if the officer testified that you had agreed to let her enter and search your home or that she heard someone screaming for help within your home, and the jury believed her story over yours, you would lose your appeal.  Why?  Because there were facts at trial that, if the jury believed them, would allow a jury to conclude the officer was allowed to enter and search your home.  Basically, in a one-person-said-other-person-said situation, the jury is given authority to break the tie as it sees fit.

This can seem counterintuitive at times.  If the appellate court reads over the trial transcript (i.e. a word-for-word record of the trial) and thinks your facts were more convincing, why wouldn’t it reject a jury verdict against you?  The idea is the jury was actually physically present at the trial.  They were able to observe firsthand the evidence and testimony—including the tone, demeanor, appearance, and other factors that might indicate who is lying and who is telling the truth.

For instance, if one of the witnesses answers questions while fidgeting nervously, pausing frequently, and avoiding direct eye contact with the attorney, a jury will likely think that witness is lying.  That behavior does not appear in a written trial transcript.  Because the appellate court understands it was not there, it will not second-guess the factual conclusions of a jury or judge.  It will only question those conclusions if there is nothing in the record—that is, no evidence—to support them.  When that happens, the appellate court can only conclude the judge or jury based the conclusion on something other than the law—a prejudice, bias, or other unfair ground—and will not follow that conclusion.

As you can see from comparing, the way the appellate court looks at factual challenges makes it more difficult to win an appeal than the standard for legal challenges.  However, the ultimate strength of your appeal depends upon the details of appellate issue in your case.


There are other standards of review an appellate court may use when considering an appeal.  However, de novo and clearly erroneous, as discussed above, are the two most common.  An experienced appellate attorney can provide more information on how those standards, or others, would apply to your case.

For a discussion of appealing a mistake of the trial judge during the trial—for instance, if the judge does not allow you to call an important witness to the trial.


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