Three-Judge Panels

Appeals normally are decided by panels of three judges working together. A panel may include a senior circuit or district judge, a district judge from a district court within the particular circuit, or a visiting circuit or district judge from another circuit. In general, judges are assigned to panels randomly. The judges may play no role in determining who will sit on which panel or in the assignment of cases to a particular panel. Indeed, the creation of the panels and the assignment of cases to individual panels are separate functions often performed by different court units.

Additionally, judges do not participate in cases in which their participation would constitute a conflict of interest or create an appearance of impropriety. In such circumstances, the judge should recuse himself or herself from the case.

The appellant presents legal arguments to the panel in a written brief, seeking to persuade the judges that the trial court committed substantial error, and that the trial court’s decision should therefore be reversed. The party who prevailed in the trial court, known as the appellee (or respondent for administrative agency appeals), argues in a reply brief that the trial court was correct, or that any error made was not significant enough to affect the outcome of the case.

In the majority of circuits, most appeals are decided solely on the basis of briefs submitted to the court. In other circuits, the court more often renders its decision after oral argument, which is a structured discussion in which both sides present arguments on the legal principles in the dispute. Each side is given a short time, typically 15 minutes, to present its case, but the judges may interrupt to ask any questions they have. Oral arguments traditionally are open to the public.

Judicial Conference policy leaves it to the individual appellate courts to decide whether electronic and photographic coverage of oral arguments will be allowed. The Second and Ninth Circuits will consider requests for such coverage in civil cases. The Seventh, Eighth and Ninth Circuits make available on the Internet digital recordings of oral arguments.

Some time after the submission of briefs or after oral argument, the court of appeals will issue a decision, usually accompanied by an opinion explaining its rationale. A decision may be reached by a 3-0 or 2-1 vote. A decision will take into account and apply any relevant precedents, similar cases already decided by that court, or by the U.S. Supreme Court.

This decision will be controlling unless: (1) the judges send the case back to the trial court for additional proceedings (i.e. remand the case); (2) the court determines on its own that the matter should be reheard because of a potential conflict with a prior decision; (3) the parties seek a rehearing before the panel; (4) the parties seek review before the full appeals court (called an en banc session); or (5) the parties seek review in the Supreme Court.

Federal courts of appeals issue tens of thousands of decisions each year, and only a small percentage of them are taken to the Supreme Court, which grants review only to a fraction of the cases it receives. Opinions issued by the courts of appeals and by the Supreme Court are posted on the respective court web sites.