USA Law and Practice Contributed by: Courtney Scobie, Jack Edwards and Andrea Whitley, Ajamie LLP
preliminary injunctions, qualified immunity, or other matters. 10.4 Issues Considered by the Appeal Court at an Appeal Federal appellate courts in the USA consider a range of issues during an appeal. The scope of review is generally limited to matters that were raised and preserved in the trial court. Federal appellate courts may consider legal issues and questions of law, including: • interpretation and application of federal stat- • questions of jurisdiction and venue; and • legal errors made during trial proceedings, such as improper evidentiary rulings, jury instructions or application of legal standards. Appellate review is generally limited to the record created in the trial court, which includes tran- scripts of trial proceedings and any relevant exhibits. New evidence is typically not consid- ered on appeal. 10.5 Court-Imposed Conditions on Granting an Appeal utes and regulations; • constitutional issues; Federal appellate courts in the USA generally do not impose conditions on granting an appeal as a matter of routine practice. Instead, the decision to grant or deny an appeal is primarily based on the merits of the case and whether it meets the criteria for appellate review. It is important to note that the appeals process is primarily focused on reviewing the trial court’s decision on its merits, rather than imposing con- ditions for the mere act of granting an appeal. Appellate courts make their decisions based on the rules of appellate procedure and legal
standards governing appellate review. If a party is granted an appeal, it is typically to address specific legal issues or errors that were raised during the trial court proceedings. 10.6 Powers of the Appellate Court After an Appeal Hearing After hearing an appeal, appellate courts in the USA have several powers and options, depend- ing on the specific circumstances and the nature of the case. These powers are designed to address legal errors, ensure fairness, and pro- vide remedies when necessary. An appellate court can affirm, reverse or modify a final judg- ment either in whole or in part. An appellate court can also remand a matter back to the trial court for further proceedings, such as additional fact finding or correction of legal errors. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation In general, in the USA, each party bears their own attorney’s fees and costs. It is not a “loser pays” system unless provided for by statute or contract. In some cases, specific statutes or contracts may provide for the recovery of attorney’s fees and costs by the prevailing party. If a prevailing party seeks to recover attorney’s fees and costs, the opposing party can challenge the amount and reasonableness of those fees and costs. Sometimes, if the prevailing party seeks to recover costs such as court fees and expenses, a process known as “taxation of costs” occurs. The court assesses whether the costs claimed
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