How Do I Appeal a Case?

Richard D Ackerman

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Litigation Lawyer

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Posted about 5 years ago. 4 helpful votes

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1

Filing Your Notice of Appeal.

The first step in any appeal is the filing of the Notice of Appeal. The time to do this depends on the nature of the appeal and what type of case led up to the appeal. You should also know that you cannot appeal from every bad ruling. The time for this notice may be as short as a ten days and as much as six months, depending on what you are seeking review of. A notice of appeal can only be taken from certain interlocutory rulings (injunctions, writs, or other dispositive rulings). It is also important to note that even a final judgment may not be appealable until a notice of entry of the judgment has been entered by the trial court. A premature appeal may be dismissed. This is a very costly mistake since filing an appeal in California will cost a minimum of $800.00-900.00 just for the privilege of getting it before the Court. If you make a mistake, you may have to pay the initial filing fees all over again.

2

Designate Your Record on Appeal

Within a short time after filing your appeal, you will need to designate the Clerk's and Reporter's Transcripts on appeal. What this means is that you are informing the Court of the documents that you think are necessary for a proper review of the challenged ruling or judgment. This step is critical because a reviewing court's ability to review a lower ruling is STRICTLY limited to the record on appeal. It is often said that you "cannot go outside of the four corners of the record on appeal" during the appellate process. If you later attempt to bring up something that you did not include on your record on appeal, it will not likely be considered. If, for some reason, you have failed to adequately designate the record on appeal, you may bring a later motion for augmentation of the record or a request for judicial notice. However, you cannot assume that this motion will be granted by the Court of Appeal. You must assume that your original designation is binding and final.

3

Briefing Your Appeal

After the Clerk and Reporter have informed you that your record on appeal is complete, the time for you to file your opening brief will be triggered. Your brief is just as critical as the record on appeal. Again, this will require that you bring up anything you think is important in an organized way. If you fail to raise an argument, the argument may be deemed waived by the Court. Most important to any opening brief is organization, clear thought, and careful identification of the issues on appeal. If you do not raise an issue, it does not count !!! Also, you should be aware of the fact that briefs must be prepared according to very technical specifications as to type fonts, page limitations, inclusion of tables, and use of trial exhibits. Make sure to outline your arguments before putting them to paper, make sure to double-check your case citations, and you must have several others review your work for typographical errors or other problems that distract from your brief.

4

Arguing Your Appeal

After complete briefing by the parties (Appellant's Opening Brief, Respondent's Brief, Reply Brief), the matter will be set for oral argument. In California, you will be arguing before a panel of 3 justices. At least one of them will have likely drafted a tentative opinion before you get there and, often, you will have seen the justices' tentative opinion before you get to argument. You must make sure to address the concerns that the Court has about your position and must assume that they have already read your briefs. They want you to focus on important clarifications and illumination of points that matter. It is not a time to reargue your case or to present evidence that wasn't a part of the trial record. You will likely be asked very piercing questions about your position and you had better know the record on appeal from top to bottom. Arguing an appeal can be a very nerve-racking experience and requires a great degree of focus and respect for the authority of the Court.

5

The Decision

Within a short time after your oral argument, the Court will issue a final decision on appeal. The decision may or may not be published. If it is published, it will be because there is a unique point of law that came up in your case. The Court will only publish where the publication would lend itself to a clarification of law which affects many others or where there has been confusion in the law. If published, your decision becomes binding law in the State of California. Remember, what you do on appeal is important because you could cause 'bad law' to be created. After receiving the decision, carefully review it. If you do not like the decision, there are a few mechanisms by which you can ask for a rehearing. However, the likelihood of a rehearing is very small. You will be left with a decision as to whether to appeal to a final reviewing court such as the California Supreme Court or United States Supreme Court. Chances are not good for review (less than 2%),

6

I Want to Go to the Supreme Court

Your chances of getting review by the California Supreme Court are not good at all. Your case must present with important issues of public policy, a clear divide in district opinions on your area of law, or some compelling constitutional problem that is important to the stability of the law. The occurrence of these factors is very unlikely. You must remember that the Supreme Court is the highest court in California and is not likely to involve itself in what probably amounts to a personal dispute between you and someone else. If you do decided to seek review, there are deadlines and there will be a new briefing process. Unless the Court grants review of your case, you will not be arguing your case before them. Most attorneys have never appeared before the Supreme Court.

7

Areas of Concern During Appeal

While an appeal typically stays all trial court matters encompassed by your notice of appeal, it does not necessarily mean that nothing will happen during the appeal. If you are a defendant, the plaintiff may still be able to collect on the trial court judgment and you may have to post bond on appeal to avoid collection efforts. Also, matters not covered by the scope of the appeal may continue to be heard at the trial court level. In sum, you may still find yourself fighting your underlying case while you are on appeal. Keep yourself organized and make absolutely certain to hire counsel who are familiar with the Courts of Appeal and who has argued before the Courts on a regular basis. Even the best appeal attorneys have a less than 25% chance of reversal. Normally, the trial court will be upheld. Under law, the trial court is to be given deference on just about all matters of fact. Any questions of law will give you a better chance on appeal if there was a clear error of law.

Additional Resources

Inland Valley Attorneys Appellate Information

California Courts of Appeal

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