Seeking Leave to Appeal
Many states and the federal government have two levels of appellate courts. The intermediate level will hear nearly all appeals; you don’t need permission to seek review of a trial court decision from these courts. But the highest courts in many jurisdictions only hear a tiny fraction of cases after the intermediate appeals court hears them. Accordingly, litigants often need to ask those courts for permission to appeal to them. And that process can be difficult and confusing.
Why should you read this post about seeking leave to appeal?
You want to file a bunch of papers to get the chance to file more papers.
You are curious about how certain cases get to the highest courts.
You need to understand why the U.S. Supreme Court isn’t likely going to hear your case.
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The Rules for Seeking Leave
Rules of civil and appellate procedure in different states and courts set forth the rules for seeking permission to appeal. In New York, CPLR 5601 and 5602 set forth these rules. In federal courts, Supreme Court Rule 13 and statutes like 28 U.S.C. 1254 set forth the rules. And for the U.S. Supreme Court, this leave is called “certiorari,” which many people abbreviate as “cert,” as in “the Supreme Court granted cert” or “cert petition.”
The rules may state that certain appeals may be heard by the appeals court “as of right.” This means that permission may not be necessary, since the highest court will hear all cases that meet certain criteria. For example, in New York, the Court of Appeals will hear any case that has two dissenting votes in the Appellate Division.
The rules may also state that, after a decision of the intermediate appellate court, a petitioner may file a request with the intermediate court, or with the high court, or both, setting forth the reasons why a higher appeal is appropriate. If the court agrees, that begins the process in which the case is heard in the high court.
In New York petitioner may have to go through this process twice, asking the the same Appellate Division that ruled against her to certify a question to the Court of Appeals and, if that fails, asking the Court of Appeals for leave. It often feels repetitive and takes time and costs money.
What Kinds of Things Appeals Courts Look For
When people appeal, it is usually because they think the lower court made a mistake or used bad reasoning. But fixing mistakes or correcting reasoning is not the only thing that an appeals court may look for. And so petitions for leave often make other arguments besides a need to change the result in the petitioner’s own case. Instead, petitioners may argue that taking the case is important for reasons broader than the individual interests of the parties to the case.
One argument that has been persuasive appeals courts is to address a “split.” A split arises when different appeals courts have decided the same issue differently. Appeals courts may want to address situations where one court is getting the law wrong for many different litigants, or address the unfairness that may arise if the same law is applied differently for different people. For example, according to a government report, there was a circuit split between the Second Circuit and the Sixth Circuit in 2023 about whether the RICO statute allowed plaintiffs to seek damages for personal injuries. Litigants in those cases asked the Supreme Court to decide which circuit got it right so there wouldn’t be two different interpretations of the law.
Another thing that may persuade an appeals court is the need to decide an important issue. And so even if an individual litigant may not care about the social implications of the decision in their case, their lawyers may highlight those issues in a way to convince an appeals court to hear the case. These important issues may include interpreting a new law or considering how a new law or concept fits into an existing legal doctrine.
Intermediate Courts Are Often the Last Court of Appeal
Although high courts exist, they take very few cases. The U.S. Supreme Court only grants about 1% of the 8,000 cert petitions it receives every year. And those 8,000 petitions reflect the cases that lawyers thought were worth seeking cert for. Similarly, the New York Court of Appeals grants leave for about 2-4% of the cases that seek it. As a result, after a decision from the intermediate appellate court, it is likely finally decided.
Still, there is one additional avenue in some cases: a litigant may ask for the entire intermediate appellate court to review a case, instead of just the panel of (often) three judges that heard it originally. These en banc rehearings give litigants another chance to argue their case after an unfavorable decision. But these are also relatively rare.