Service appellate practice

An appeal asks a higher judicial authority to review eligible action taken below. An appeal is generally not a complete replacement trial where everyone starts from the beginning and introduces an entirely new set of facts.

The appellate authority reviews the proceeding according to the applicable record, legal standards, and scope of review. The central question is usually whether legal error occurred and, if so, what consequence should follow.

Ordinary service appellate review is handled by the appropriate Assistant Judge Advocate General exercising appellate jurisdiction. Before appellate jurisdiction arises, an Assistant Judge Advocate General's supervisory access to service cases does not make that official the trial judge.

Once a proper appeal reaches the Assistant Judge Advocate General, the office exercises the appellate judicial authority granted by the Rules. The same office may therefore possess supervisory awareness of a case at one stage and actual appellate jurisdiction at another.

Appellate review depends heavily upon the record developed below. The reviewing authority may need to know what evidence was offered, what objections were made, what rulings occurred, what arguments were preserved, and what judgment was entered.

A strong appellate issue identifies the legal question clearly. "Whether the Military Judge erred by admitting Exhibit 12 without sufficient authentication" is far more useful than "The judge was wrong."

A useful appellate framework is Rule, Error, Effect, and Remedy. First, identify what the law required.

Second, explain what the lower court did differently. Third, explain why the difference mattered.

Finally, tell the appellate authority what should be done. Appellate advocacy is stronger when counsel explains not only that something went wrong, but why the error affected the case.

A remand sends a matter back to a lower judicial authority for further proceedings. An appellate authority may determine that the Military Judge used the wrong legal standard but that additional factual findings are necessary before the issue can be completely resolved.

The appellate authority can identify the correct standard and return the matter for additional proceedings. A remand is not necessarily a final victory for either side. It usually means congratulations, everyone gets more legal work.