1. Think about the subject of this section and get ready to discuss the following questions:

• What stages of legal proceedings does a civil case usually pass through? Which of them are post-trial ones?

• What types of trial court decisions do you know and which of them can be a subject for appellate review in Ukraine?

• Explain the term “court judgment without appeal”.

• What do you call parties to an appeal in your country? What are their English counterparts?

• What grounds for lodging an appeal are provided for by Ukrainian Civil Procedure Code?

2. Write out of a dictionary the phonetic scripts of the words given below. Group the words according to spelling differences and compare the pronunciation of bold letters using the phonetic scripts. Memorize the words spelling and their respective pronunciation.

appeal, appellate, appealable, to appeal, appellant, appellee.

3. You have a minute to make up all possible word combinations with the words from exercise 2 which might be used in the text. Explain your choice.

Read the text and continue the list of word combinations in exercise 3:

TEXT 1

Notes:

¹rules and practices – процесуальні норми та судові процедури

²on specific grounds – на певних підставах

³due process – процедура розгляду справи з належним дотриманням норм процесуального права

⁴in a lawful manner – законно, правомірно, у відповідності до закону

⁵in the course of the case – у ході справи

⁶damages – відшкодування збитків

⁷underlying constitutional or legal principles – основні конституційні та правові принципи; принципи, що лежать в основі конституції та законів

⁸in an improper manner – неправомірно, неналежним чином

Rules of appellate review

Appellate procedure consists of the rules and practices¹ by which a court of appeal reviews trial court judgments. The procedure focuses on several main aspects: what judgments are appealable, how an appeal is to be brought before the court, what will be required for a reversal of the lower court judgment, and what procedures the parties must follow.

Appellate review is the general term for the process by which courts with appellate jurisdiction review matters decided by lower courts. In law, an appeal is a request for a formal change of an official decision. Depending on the particular legal rules, a party to a court case who disagrees with the result is able to challenge the decision in an appellate court on specific grounds² typically including errors of law, fact, or procedure that is called due process³ in the USA. The function of the appeal is to assure that the trial has been conducted in a lawful manner⁴ and that judgment conforms to the law. Broadly speaking, the lower courts decide matters of fact and the upper courts normally deal with points of law.

When trial proceedings are terminated, a judgment is rendered and there is nothing to be done in the action except to execute the judgment one speaks of a final judgment. But if the attorney and client are not satisfied with the court decision in their matter, under some circumstances they can initiate an appellate procedure that is to apply for the judicial examination of the decision by a higher tribunal by submitting appellate brief to an appropriate appellate court.

In most jurisdictions the normal way of seeking appellate review is by filing an appeal of the final judgment in the action. Appealing from interlocutory judgments, deciding some procedural, that is interlocutory, matter, but not terminating the proceedings, is not allowed. This type of orders is commonly described as reviewable but not appealable. Generally, an appeal of the judgment will also include appeal of all other orders or rulings made by the trial court in the course of the case⁵.

A party who files an appeal is called an appellant or a petitioner, and an opposing party is called a respondent (in most common-law countries) or an appellee (in the United States). In civil matters any dissatisfied party to a trial may appeal to a higher court. So the appellant can be either the claimant or defendant. As a rule the losing party refers to a higher court to have its case reconsidered, though in some cases the prevailing party in the trial court may still appeal on the ground that the amount of damages⁶ awarded is too low.

Appeal may be a matter of right or that of discretion. An appeal as of right is one that is guaranteed by statute or some underlying constitutional or legal principle⁷ and an appellate court cannot refuse to listen to the appeal. An appeal by leave or permission requires the appellant to move for leave to appeal; in such a situation either or both of the lower court and the appellate court may have the discretion to grant or refuse the appellant's demand to appeal the decision of lower court.

It is important to note that in adversarial system appellate courts do not have the power to review lower court decisions unless a party appeals it. Therefore, if a lower court has ruled in an improper manner⁸ or against legal precedent and the judgment was not appealed, it will stand even if it might have been overturned on appeal.

II. COMPREHENSION

1. Find in the text legal terms which correspond to the following explanations:

• a party who initiates an appeal from one court to another;

• a procedural document filed with an appellate court to initiate appellate proceeding;

• an opposing party against whom an appeal is filed;

• a request for a formal change to lower court decision.

2. Which of the given words/phrases have you come across in the text? What do they refer to in the context?

Rules and practices; general term; pleadings; specific grounds; appellate brief; normal and preferred way; lawsuit; interlocutory judgments; objections; prevailing party; a matter of right; discovery; to move for leave to appeal.

3. Answer the questions. Refer to the text if necessary.

1. Who can initiate appeal proceeding in civil cases: loosing, prevailing or dissatisfied party?

2. What are the main aspects regulated by the appellate procedure rules?

3. What do you understand by due process?

4. What is a final judgment?

5. What can be the grounds for prevailing party to appeal or cross-appeal?

4. React to the following statements: agree or disagree. Support your answers by information or facts from the text.

1. An appeal is an application for the judicial examination by higher tribunal of the decision of any lower tribunal.

2. In civil matters all judgments of a trial court can be appealed.

3. There must be specific grounds to challenge a lower court decision in an appellate court.

4. The main purpose of appellate process is to change a trial court decision.

5. One can speak about final judgment when the decision on a civil case is rendered by the court of last resort.

6. Appeal is a matter of discretion of a court and an appellant is required to move for leave to appeal.