makes a limited appearance and wins the case
can be sued again by the sam e plaintiff in a
different court.
In states that have no provision for a limited
appearance, a defendant can avoid being subject
to the personal jurisdiction of the court by
refusing to appear, thereby causing a default and
a consequent
FORFEITURE of the property. Or the
defendant can submit to the court’s personal
jurisdiction, defend the case on its merits, and
face the possibility of full liability. The defen-
dant must decide which course of action is best,
after comparing the value of the seized property
with the damages being sought by the plaintiff
and considering the likelihood of winning the
case at trial.
The Federal Rules of Civil Procedure do not
provide for limited appearances in federal court
but instead defer to state law on that issue. A
slightly greater number of courts permit limited
appearances than do not. The law of the
jurisdiction in which the action is brought must
be consulted to determine whether limited
appearances are permitted.
Withdrawal
If an appearance has been entered through
FRAUD or mistake or after the plaintiff’s com-
plaint has been materially amended, the discre-
tion of the court may permit the appearance to
be withdrawn. A proper withdrawal is treated as

Civil Procedure.
APPELLANT
A person who, dissatisfied with the judgment
rendered in a lawsuit decided in a lower court or
the findings from a proceeding before an adminis-
trative agency, asks a superior court to review the
decision.
An appellant, sometimes called the peti-
tioner, must demonstrate sufficient grounds for
appeal, which are usually specified by statute, in
order to challenge the judgment or findings.
Whether a party was a
PLAINTIFF or DEFENDANT in
the lower court has no bearing on his or her
status as an appellant.
APPELLATE
Relating to appeals, which are reviews by superior
courts of decisions made by inferior courts or
administrative agencies.
APPELLATE ADVOCACY
Appellate advocacy is the legal repr esentation by
an attorney before any state or federal court of
intermediate or final appeal.
The
U.S. COURTS OF APPEALS were created by
the Evarts Act of 1891 (28 U.S.C.A. § 43) and
are divided into 13 judicial circuits (see the
accompanying table). The central location of
each court is determined by statute (28 U.S.C.A.
§41[1995]). In addition, a court may sit any

district court judgment ( 324 U .S. 229, 2 8 U.S.C.A.
§1291[1995]). When a judgment is entered
that “ends the
LITIGATION on the merits and
leaves nothing f or the court to do but e xecute
the j udgment,” a case is completed ( Catl in v.
United States, 65 S. Ct. 631 [1945]).
Congress has progressively limited the
Supreme Court’s power to directly review trial
court decisions without a hearing in the courts
of appeals . Because Supreme Court review is
usually discretionary in the overwhelming
majority of cases, a court of appeals is the
highest federal tribunal where a litigant or
DEFENDANT can receive a hearing on the merits.
The Appeals Process
An unsuccessful party in a lawsuit or adminis-
trative proceeding may file a timely appeal to
an appropriate
SUPERIOR court empowered to
review a
FINAL DECISION, on the ground that it
was based upon an erroneous application of
law. The person who initiates the appeal, called
the appellant, must file a notice of appeal, along
with other necessary documents, to commence
appellate review. The person against whom the
appeal is brought, the appellee, then files a brief
in response to the appellant’s allegations.
Usually, review in the federal and state

An appeal must be made within the time
prescribed by statute or by the rules governing
the appellate court. The time for filing an appeal
begins to run once a final decision has been
made by the trial court. The appellant must file
a notice of appeal with the clerk of the appellate
court in order to begin the appeal and send a
copy to the appellee. If the appeal process is not
begun within the time set by statute, any right to
appeal is lost. If
EXTENUATING CIRCUMSTANCES
exist, an extension of time for filing the appeal
may be granted.
The appellate court can review only the trial
court record and the briefs filed by the appellant
and appellee. If permitted by the appellate
court,
AMICUS CURIAE briefs may also become part
of the record on appeal. (Amicus curiae means
“friend of the court.” A person who is not a
party to the action may petition the court for
permission to file such a brief.) The briefs must
contain the facts of the case, the grounds for
review, and arguments relating to the issues
raised.
The appellant’s brief must specifically dis-
cuss the alleged errors that entitle the appellant
to a reversal of the trial court’s decision and
discuss why each ruling was wrong, citing
authority such as a case or statute that applies

After reviewing the appeal, the appellate
court may affirm the decision of the lower
court, modify it, reverse it, or remand the case
for a new trial in the lower court. When a
decision is affirmed, the appellate court accepts
the decision of the lower court and rejects the
appellant’s contention that the decision was
erroneous. When the appellate court modifies
the lower court’s decision, it accepts part of the
trial court’s decision and determines that
the appellant was partly correct in saying that
the decision was erroneous. The trial court’s
decision is then modified accordingly. In
reversing a decision, the appellate court indicates
that it agrees with the appellant that the lower
court’s decision was erroneous. The party who
lost the case at the trial court level then becomes
the winning party in appellate court. Occasion-
ally, a decision will be reversed, but the lawsuit
is still unresolved. In such cases, the appellate
court orders that the case be remanded
(returned) to the lower court for the determi-
nation of issues that remain unresolved.
Federal Criminal Appellate Advocacy
The SIXTH AMENDMENT to the U.S. Constitution
guarantees acriminal defendant the right to a jury
trial and the right to an attorney. The
FOURTEENTH
AMENDMENT
says states must provide criminal

a large number of criminal appeals, in 1897
Congress transferred jurisdiction over noncapi-
tal appeals to the circuit courts of appeals. In
1911 Congress abolished the right of direct
appeal to the Supreme Court in capital cases,
and the circuit courts became the appellate
courts for all criminal cases.
In 1894, in McKane v. Durston (153 U.S. 684,
14 S. Ct. 913, 38 L. Ed. 867), a unanimous
Supreme Court determined that no matter
how serious the offense, a criminal defendant
had no constitutional right to appea l her or his
conviction.
The Criminal Justice Act (18 U.S.C.A. §
3006A [1995]) is an outgrowth of the Sixth
Amendment
RIGHT TO COUNSEL. The act requires
courts to develop and implement plans to
furnish representation for defendants charged
with felonies or misdemeanors, other than petty
offenses, who are financially unable to obtain an
attorney. Although the act is directed primarily
to proceedings at the trial court level, it provides
that any person for whom counsel is appointed
shall be represented at every stage of the
criminal proceedings, from the defendant’s
initial appearance through the appeal process.
State Criminal Appellate Advocacy
All U.S. states provide defendants some form of
appeal from a criminal conviction. Appeals were

question regarding the reaches of appointed
appellate counsel in Harbison v. Bell (No. 07-
8521, 556 U.S. ___ [2009]). The question before
the Court was whether Harbison, a death-row
inmate who had exhausted all his state court
and federal habeas appeals, could request a
federally appointed (and funded) attorney (who
had represented him in filing the federal
WRIT of
HABEAS CORPUS) to represent him (if no other
attorney was available) to prepare a last-ditch
petition for state
CLEMENCY proceedings. The
Court, by a 7–2 decision, said yes.
Tennessee law no longer authorized the
appointment of state public defenders for
clemency proceedings. Therefore, Harbison’s
federally appointed habeas attorney had
requested the district court to expand the scope
of her representation to include the state
clemency proceedings, relying on 18 USC
§3599 (which provides for the appointment of
federal counsel) for authority. Section §3599 (a)
2 expressly refers to the federal habeas statute
sections §2254 and §2255, providing for the
appointment of counsel in “both state and
federal post-conviction proceedings.” Section
§3599 (e) in relevant part, states that counsel is
available to any defendant sentenced to death in
“proceedings for executive or other clemency as

by the jud ge in his original case. The Court
rejected a bright-line rule (a strict rule with no
ability to use discretion) that would have
mandated such a consultation, ruling that each
case must be analyzed using a set of standards.
The Court in Roe held that a defendant
claiming ineffective assistance of counsel must
show that the attorney’s representation “fell
below an objective standard of reasonableness”
and that the attorney’s deficient performance
prejudiced the defendant. The Court used a test
set out in Strickland v. Washington (466 U.S.
668, 104 S. Ct. 205, 80 L. Ed. 2d 674 [1984])to
determine if Flores-Ortega’s attorney was con-
stitutionally ineffective for failing to file a notice
of appeal. It directed that an inquir y should
begin by asking whether the attorney in fact
consulted with the defendant about the appeal.
Such a consultation meant advising the defen-
dant on the pros and cons of taking an appeal
and making a reasonable effort to discover the
defendant’s wishes. However, the defendant
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
APPELLATE ADVOCACY 331
would still have to show that there was a
reasonable probability that, but for his attor-
ney’s conduct, he would have filed a timely
appeal.
In Glover v. United States (531 U.S. 198, 121
S. Ct. 696, 148 L. Ed. 2d 604 [2001]), the

there was no way the defense attorney could have
been objective.
The Supreme Court disagreed, in a decision
that signaled a departure from its death penalty
jurisprudence. Because of the finality of a death
sentence, the Court previously required less
hard evidence of prejudice from in effective
counsel. In Mickens, the Court stated that the
general rule for ineffective counsel should also
be applied to capital murder cases. Under this
standard the defendant must show that “but
for” the lawyer’s conduct, the result of the trial
would have been different. The Court will
presume an adverse effect “where assistance of
counsel has been denied entirely or during a
critical stage of the proce eding.” In Mickens,
however, the Court found that the trial attorney
had done an acceptable job in representing the
defendant, so no adverse effect could be
presumed. Because the defendant could not
show that the outcome of his trial would have
been any different but for the actions of his
attorney, his appeal was rejected (see also
Schriro v. Landrigan aka Hill No. 05-1575, 550
U.S.___ [2007]).
FURTHER READINGS
Arkin, Marc M. 1992. “Rethinking the Constitutional Right
to a Criminal Appeal.” University of California at Los
Angeles Law Review 39.
———. 1990. “Speedy Criminal Appeal: A Right without a

an appeal with an appellate court in order to
have the decision reviewed. In the United States,
appellate courts exist at both the federal and the
state levels, and generally they consist of a panel
of two or more judges. On the federal level,
decisions of the U.S. district courts, where civil
and criminal matters are tried, can be appealed
to the U.S. court of appeals for the circuit
covering the district court. Eleven numbered
federal judicial circuits have been established.
Each circuit comprises a number of states that
are usually, though not always, in close
geographic proximity. For example, the Eighth
Circuit includes Arkansas, Iowa, Minnesota,
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
332 APPELLATE COURT
Missouri, Nebraska, and North and South
Dakota, and the Sixth Circuit is made up of
Kentucky, Michigan, Ohio, and Tennessee.
Washington, D.C., has two
U.S. COURTS OF
APPEALS
: the District of Columbia CIRCUIT COURT
of Appeals, which hears appeals arising out of
decisions of the Federal District Court for the
District of Columbia, and the U.S. Court of
Appeals for the Federal Circuit, which has
exclusive and nationwide jurisdiction in appeals
from U.S. district court decisions in patent,
copyright, trade mark, and other specialized

state also can be appealed to the U.S. Supreme
The interior chambers
of the U.S. Supreme
Court, the last forum
for appeals of lower
court decisions.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
APPELLATE COURT 333
Court, though again the U.S. Supreme Court
will hear only appeals of major significance.
In both state and federal matters, in general,
an appeal can be brought only after a
FINAL
DECISION
, or final judgment, in the ACTION has
been entered. A judgment is final for the
purposes of an appeal when nothing more is
to be decided in the action, and it concludes all
rights that were subject to
LITIGATION. This rule
is based in part on the desire for judicial
economy: It is more efficient for all matters to
be heard in one appeal than for a case to be
conducted “piecemeal” (in several appeals)
before it is finally resolved. However, both state
and federal courts will in some instances hear an
INTERLOCUTORY appeal, which is an appeal of a
matter that does not decide the entire case but

factual issues. Instead, it determines only
whether there is sufficient evidence to support
the findings of the trial court and whether the
trial court correctly applied the law.
Both the appellant (the party appealing the
lower-court ruling) and the appellee (the party
against whom the appeal has been brought) file
written briefs with the appellate court. The
briefs—which recite the facts of the case,
the arguments being raised on appeal, and the
applicable law—help the court decide whether
the trial court erred in its decision.
The appellate court may also hear oral
arguments in the case. During oral argument,
each party has 10 to 15 minutes to persuade the
appellate court to rule in its favor. If numerous
issues have been raised, a party may choose to
use most of this time to cover the issues that are
most crucial to the decision to be made. The
court is free to interrupt an oral argument with
questions concerning the facts of the case or the
particular areas of law involved. The appellate
court, at its discretion, may determine that oral
argument is not necessary and may decide the
case based only on the trial court record and the
written briefs.
In making its decision, the appellate court
may affirm the trial court, mea ning that it
accepts the decision of the lower court, or may
reverse it, thus agreeing with the appellant’s

Academic Press.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
334 APPELLATE COURT
CROSS REFERENCES
Appeal; Appellate Advocacy; Courts; Federal Courts.
APPELLEE
A party who has won a judgment in a lawsuit or
favorable findings in an administrative proceed-
ing, which judgment or findings the losing party,
the appellant, seeks to have a higher court reverse
or set aside.
The designation as appellee is not related to
a person’s status as
PLAINTIFF or DEFENDANT in the
lower court.
Another name for appellee is respondent.
CROSS REFERENCE
Appeal.
v
APPLETON, JOHN
JOHN APPLETON was a prominent nineteenth-
century Maine lawyer and judge. He served as a
justice and chief justice of the Maine Supreme
Judicial Court from 1852 to 1883. During his
long tenure he came to be recognized for his
opposition to state laws that granted loans or
tax exemptions to businesses. His belief in free
market capitalism translated into minim al
government regulation of business and no
government breaks for business. In addition

judicial opinions, Appleton published in 1860 a
treatise entitled The Rules of Evidence, Stated and
Discussed.
Appleton’s opinions from the early 1870s on
the proper relationship between government
and business have come to be regarded as
groundbreaking expressions of laissez-faire
constitutionalism. After the Civil War state
governments had rushed to give railroads and
other businesses tax exemptions, loans, and
property easements. When the town of Jay
sought legislative authority to loan $10,000 to
private entrepreneurs to move their mill and
factory to the town, the legislature sought an
ADVISORY OPINION from Maine’s supreme court.
In a bluntly worded opinion, Appleton declared
that the legislature had no authority to help
private businesses through gifts or loans. When
John Appleton 1804–1891
❖
❖
◆
◆
◆◆◆
1804 Born,
New Ipswich, N.H.
◆
▼▼
▼▼
18501850

Bangor, Maine
1860 Rules of Evidence
treatise Published
1820 Missouri Compromise
enacted, limiting slavery
1854 Kansas-Nebraska
Act passed
1861–65
U.S. Civil War
1857 Supreme Court issues Dred Scott
decision; Missouri Compromise unconstitutional
1877
Reconstruction ends
1865 Thirteenth Amendment
abolished slavery
1883 U.S. Supreme Court strikes down
Civil Rights Act of 1875
1882 Congress enacts
Chinese Exclusion Act
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
APPLETON, JOHN 335
the legislature ignored this opinion and autho-
rized the funding, Appleton issued an opinion
ruling the act unconstitutional. Appleton’s
analysis foreshadowed the
SUBSTANTIVE DUE
PROCESS
doctrine that the U.S. Supreme Court
employed to strike down government regula-
tions of business.

cars, boats, and household items, or it may consist
of an intangible interest in property, such as the
right to receive dividend income from stocks.
A
POWER OF APPOINTMENT may be transferred
only in writing, such as by deed, trust, or will.
Donees who receive an oral promise to be given
a power of appointment, however, may bring an
action for
PROMISSORY ESTOPPEL if they have relied
to their detriment on that promise. In no case
will a court find that a power of appointment
had been created unless the donor’s intent to
create the power is demonstrated; the person
who would hol d the power is indicated; the
circumstances under which the power could be
exercised are identified; and the property that is
subject to the power is specified.
No particular semantic formula is necessary
for the creation of a power of appointment. Any
written expression, however informal, will
suffice so long as it clearly indicates an intention
to create such a power. Thus, a power of
appointment may be created by implication.
For example, a devise or bequest of property to
a person as he or she may designate to receive it
or subsequently transfer it gives that person a
power of appointment. A
TESTAMENTARY gift to a
donee for life, to be at his or her disposal, or

Districting is the establishment of the precise
geographical boundaries of each such unit or
constituency. Apportionment by state statute that
denies the rule of one-person, one-vote violates the
equal protection of laws.
Apportionment is also the allocation of a charge or
cost such as real estate taxes between two parties,
often in the same ratio as the respective times that
the partie s are in possession or ownership of
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
336 APPOINT
property during the fiscal period for which the
charge is made or assessed.
JAMES MADISON and his fellow founders of the
United States of America had many objectives as
they framed the U.S. Constitution. One was
equal representation in a governme nt run by
members of Congress on behalf of citizens of
the United States. To ensure that equal
representation occurred, the founders proposed
that the U.S. population be counted at regular
intervals with a census. They later agreed in the
Great Compromise of 1787 that congressional
representation should be assigned—in other
words, apportioned—to various regions of the
country based on a total population standard.
Both Article 1, Section 2, Clause 3, and
Amendment 14, Section 2, of the Constitution
provide that representatives shall be appor-
tioned among the states according to their

ska
SOURCE: U.S. House of Representatives Web site, “Congressional Apportionment,” available online at />house_histor
y
/con
g
A
pp
/b
y
state.html (accessed Au
g
ust 6, 2009).
1
Montana
9
Washington
5
Oregon
53
California
3
Nevada
2
Idaho
1
Wyoming
3
Utah
7
Colorado

15
Michigan
9
Indiana
18
Ohio
19
Pennsylvania
29
New York
3
W.Va.
11
Virginia
13
N.Carolina
6
Kentucky
9
Tennessee
4
Miss.
7
Alabama
13
Georgia
6
S.Carolina
25
Fla.