Some perceive appellate courts as courts of justice. They are courts of error. The displeased or disappointed party seeking review ("appellant") is pointing out an error(s) and asking the court to direct a different outcome. The answering party(ies) are seeking to show there was no error or that any error was harmless. See Understanding how Justice Process Works (March 2016).
There are many opportunities for legal interpretation and growth. I was recently reflecting on the role of appellate courts and other tribunals. There is a primacy in the trial tribunal contributed to by both function and economics.
The fact is that litigation is an expensive method for solving disputes. This expense, in pure economic terms, is noteworthy in terms of time and currency. Success requires investment of each, and there is the persistent chance that any party's investment will yield no return; they will not prevail. Therefore, most disputes are resolved through negotiation.
Thus, a small subset of filed claims reaches the point of a judge, or in the civil context, a jury, deciding issues of fact in a dispute, and some party prevailing.
The majority of those decisions are distasteful or disappointing to at least one party. That is widely accepted as axiomatic. The observer should also know, however, that it is not uncommon for all parties to find disappointment or dissatisfaction in the result of the trial.
This is anachronistic to some. They see any contest result as being binary, a "win" or "loss." There is some truth to that. The non-prevailing party is generally disappointed or worse. Nonetheless, the prevailing litigation party may not get all that was sought or desired.
As a general proposition, any disappointed party may seek review of the trial tribunal decision. These opportunities are defined by various statutes or constitutions. The party seeking review is the "appellant," and the responding party is the "appellee."
To make that more confusing, both parties may seek review. In that instance, each party is both. The "appellant" may also be the "cross appellee," and the "appellee" also the "cross appellant." This can be quite significant because appellate courts are courts of error, and the probable outcome of an appeal is affirming the trial tribunal.
Studies have concluded "that roughly 90% of appellate court decisions affirm lower court rulings." See Barry C. Edwards, Why Appeals Courts Rarely Reverse Lower Courts: An Experimental Study to Explore Affirmation Bias, 68 Emory L. J. Online 1035 (2019). That is a compelling consideration; most trial decisions are the end. It is exceedingly important that parties invest their best efforts at trial in the disputes that they elect to litigate.
It also bears mentioning that the impact of minimal reversal rates is hierarchical. Any jurisdiction's primary level of review is more accessible than its next. Simply stated, most litigants have a right to have trial tribunal decisions reviewed; however, further review beyond that initial foray is rarely a right.
Thus, despite the oversimplifications taught in secondary school, consideration by a state's ultimate court (often "Supreme") is far less accessible, and consideration by the U.S. Supreme Court is exceedingly rare statistically. Thus, it is likewise also exceedingly important that parties invest their best efforts in the initial appeal of any disputes they pursue there.
As an aside, the Edwards paper scratches the surface of inherent predisposition or "bias," addressing one concern: "Affirmation Bias." The reader should consider that there are at least 150 identified and named biases or predispositions. While Affirmation is worthy of study, it is no more so than the others. Though the topic of appellate affirmation is not the focus, the reader might consider Langham, Unseen Influence: Unconscious Predisposition in Dispute Resolution (2025), available at https://dwlangham.com/free-publications.
The topic of stare decisis, or "to stand by things decided," is a legal imperative. Trial tribunals are effectively bound to follow precedent. The Florida First District Court, in the realm of Florida workers' compensation, has admonished:
"Although a lower tribunal or court may bring its concerns regarding the application of specific case law to the appellate courts, it is nonetheless bound to follow precedent." Andrews v. McKim & Creed, 355 So. 3d 957, 963 (Fla. 1st DCA 2023).
That is an academically correct foundation. Nonetheless, appellate authorities have been less contrite about their own adherence to precedent. Departures from established precedent may disrupt predictability and stability, leading to community perceptions of activism and ideology.
It also bears discussion of the potential flaw in the admonition. While free to "bring its concerns," there is the potential that the trial tribunal may be frankly unable. Few disputes reach trial, fewer still are appealed, and far fewer still achieve any appellate outcome beyond "affirmed." The path to consideration of change is very narrow.
Thus, it is incumbent on the trial tribunal to follow the law, statutory and decisional (stare decisis). Nonetheless, when the statute or decisional interpretations are not square with the facts at issue, the trial tribunal is free to distinguish that authority.
The paths for that discourse may lie in explaining the application of some contrary authority. It may instead lie in a factual distinction that renders application of a statute or prior authority inapplicable or questionable. To the point, it is incumbent on the parties to bring such authority to the trial, to both drive favorable interpretation and distinguish contrary authority.
It is for the trial judge to analyze authority and to either follow the arguably controlling authority or explain why departure is appropriate in the particular dispute presented.
The shortfall in Andrews was in stepping into why an appellate interpretation was incorrect. Make no mistake, many appellate interpretations are at best questionable. Appellate bodies are no less prone to error than any human endeavor; thus, there is always potential to appeal the decision of the appellate body to yet another, to a legislative body, or to the people from whom all governmental authority flows.
Such appellate decisions, expansions, or retreats may conclude an appellate decision was incorrect. That path, however arduous or narrow, remains open for any party to advocate. Nonetheless, it is appropriate that only the appellate body in question ventures down the path to concluding "incorrect" or "wrong." When one does so, that label should be clear, with acknowledgement of the error's source.
Thus, the "how" is not for the trial adjudicator to explain why appellate authority is flawed or poorly reasoned. The "how" is for the trial adjudicator to explain why such analysis is inapplicable or inapposite in the factual setting presented at trial. It is then for the parties to elect appellate review or not, and for the appellate body to (re)consider the application of law or not.
Those who litigate should remember. Those who appeal should consider. Those who predict should harken back to the Edwards article and the array of predispositions that are the human psyche.
