Welcome to First Monday, a new column intended to enhance the public’s understanding of our legal system and the law.  The U.S. Supreme Court begins each new term on the first Monday of October, but this column will appear on the first Monday of each month. I hope readers find it informative and enjoyable.

Before becoming a judge, I spent the bulk of my legal career as an appellate lawyer.  “A what?” people often asked me.  “I’m a lawyer who handles appeals.  Civil appeals, as opposed to criminal matters, to be more specific.”  I explained that I spent my days writing legal briefs — an oxymoron if ever there was one — and arguing cases before the Connecticut Supreme and Appellate courts and, occasionally, the United States Court of Appeals for the Second Circuit, in lower Manhattan.

Sometimes this explanation sufficed.  More often than not it didn’t.  People wanted to know how being an appellate lawyer differed from being a trial lawyer —the type of lawyer most folks know from TV.   To answer the question, I needed to explain the different roles that trial and appellate courts play in our federal and state judicial systems.  That difference is the subject of this column.

Imagine the court system as a pyramid.  Lots and lots of trial courts form the bottom of the pyramid.  Atop the pyramid is a single court of last resort, such as the U.S. Supreme Court in the federal judicial system, or the Connecticut Supreme Court in our state judicial system.  In between may be one or more intermediate appellate courts.  For example, there are 13 intermediate appellate courts —called circuit courts— in the federal judicial system.  Twelve are associated with a particular geographic region of the country.  The 13th has nationwide jurisdiction over specific types of legal claims.  By contrast, Connecticut has a single intermediate appellate court.  Some smaller states, like Rhode Island, don’t have any intermediate appellate courts.

If a person loses a case in the trial court, she usually has an absolute statutory right to file an appeal.  But filing an appeal doesn’t mean that she gets to retry the whole case in the appellate court.  And therein lies the fundamental difference between trial and appellate courts.

The functions of a trial court are, first and foremost, to resolve disputed issues of fact.   To illustrate, consider a case in which the state charges a defendant with murder.  The defendant claims he acted in self-defense.  That is a factual dispute the trial court must resolve.  Or consider a case in which a patient brings a malpractice action against his doctor because a surgery didn’t turn out as well as hoped.  The patient claims the doctor was negligent.  The doctor denies any negligence.  That’s another factual dispute that must be resolved in a trial court.  The “trier of fact,” usually a jury but often a judge, listens to witnesses testify and assesses their credibility, reviews documentary evidence and, finally, decides who to believe.  The trier of fact then issues a verdict or a written decision.

Disputed facts alone, however, do not a legal case make.  A trial court must apply the relevant law to the facts once any disputes have been resolved.  Frequently disputes arise over the law.   For example, the parties may disagree about the proper interpretation of a statute or the meaning of a prior court decision.  The trial court must also resolve those legal disputes and then apply what the court believes is the correct understanding of the law to the facts.  In criminal cases, which are usually tried to a jury, the trial judge “charges” the jury on the law at the end of the case.  The jury then deliberates to determine whether the defendant is guilty based on the law as charged and the facts as the jury finds them.

Because lawsuits are rarely win-win scenarios, one of the parties to the suit is usually unhappy when the final decision is announced.  If the unhappy party believes that the judge or jury made a legal mistake, the party can file an appeal.  I stress the word “legal” because appellate courts don’t review factual mistakes.  Appellate courts are fond of saying that they “don’t sit as a thirteenth juror” to second-guess the jury’s verdict or a trial judge’s resolution of disputed factual issues.   (I’ll discuss one small caveat to this statement in a moment.)

Here, then, is the primary distinction between trial and appellate courts:  Whereas trial courts resolve both factual and legal disputes, appellate courts only review claims that a trial judge or jury made a legal mistake.  Thus, appellate courts consider whether the trial court misconstrued a statute or a prior judicial decision.  They consider whether the legal instructions the trial court gave to the jury correctly described the law.  They consider whether the trial court erred when it made a ruling about the admissibility of certain evidence.  These are but a few examples of alleged legal errors.

Moreover, when an appellate court considers the appealing party’s claim that the trial court made a legal mistake, the appellate judges, who usually sit in panels, must confine their review of that claim to the existing trial court record.  The record consists of the trial transcript, exhibits submitted during the trial and legal briefs and motions filed in the trial court.  Except in the rarest of circumstances not relevant to this column, appellate courts don’t consider new evidence.  They don’t hold new trials and hear testimony from witnesses.  Instead, they review the record, read legal briefs the parties’ lawyers submit concerning the alleged legal mistakes, and then hear oral arguments from the lawyers, usually lasting no more than an hour.  Appellate lawyers often spend days preparing for oral arguments, trying to anticipate every possible question the appellate judges might ask.  After the oral arguments, the appellate judges deliberate about the case, vote on how it should be decided and then draft an opinion explaining their decision.  It is a very contemplative process.

Now the caveat to my statement that appellate courts don’t review claims that a trial judge or a jury made a factual mistake.  An appellant who believes the judge or jury made such a mistake may request a very limited type of appellate review.  The appellant can attempt to argue that no evidence whatsoever exists to support a particular factual finding or verdict, or that the evidence is so, so weak that no reasonable person could possibly have made the challenged factual determination.  For appeal purposes, these kinds of mistakes are treated as a type of legal mistake.  However, if the appellant simply disagrees with the way the trier of fact resolved a factual dispute, the appellant is out of luck.  As I said, appellate courts don’t second-guess factual findings.

One last point.  I suggested that readers think of the judicial system as a pyramid, with trial courts on the bottom and supreme courts at the top.  The word “top” is often understood to mean better or smarter.  Not in this case.  Robert H. Jackson, one of the great justices of the U.S. Supreme Court, once said of his own court: “We are not final because we are infallible, but we are infallible only because we are final.”  Generally speaking, appellate court judges are no different from trial court judges.  They just have a different job, albeit one in which they usually get the last word.

That’s it for this First Monday.   Next month I’ll discuss how cases get to U.S. Supreme Court.

Daniel J. Klau is a judge of the Connecticut Superior Court. Any opinions expressed herein are solely his own and do not necessarily reflect the views of the Judicial Branch. Before his appointment to the bench, Judge Klau served as a law clerk to former Connecticut Supreme Court Chief Justice Ellen A. Peters and then engaged in the private practice of law for 27 years, focusing on appellate, First Amendment and open government litigation. He is an adjunct faculty member at UConn School of Law, where he has taught privacy law since 2003. While in private practice he received numerous awards for his work on behalf of the First Amendment, open government and freedom of information, including the Connecticut Council on Freedom of Information’s 2018 Outstanding Service Award.