Appellate & Writ Practice

An appeal is a legal proceeding in which a party, the appellant, asks a higher court to reverse a lower court’s ruling. But an appeal isn’t another trial or a new opportunity to argue what the evidence proves. An appeal involves only argument on points of law-for example, whether the trial court followed correct procedures, ruled correctly in granting or overruling objections, and correctly applied the law to the case.

What Can Be Appealed?

Ordinarily, only a final judgment can be appealed, not orders that the court issues before the trial or rulings during the trial. Those orders and rulings can be attacked, but only in an appeal from the judgment.

Only a few kinds of orders can be appealed before the court enters the judgment. Whether an order can be appealed depends on whether a statute makes it appealable.

One example is a ruling on an injunction. One party may ask the trial court to enjoin another party from taking some action while the case is being litigated. The court’s order granting or denying the injunction can be appealed immediately.

In family law cases, orders requiring a party to pay money while the case is pending—spousal support, child support or attorney fees—are immediately appealable. But temporary child custody orders are not; in custody disputes, only a final custody judgment is appealable.

How long will an appeal take?

Most appeals take about a year and a half to two years from filing the notice of appeal to decision in the court of appeal. Of course, some cases are decided much faster, but some take much longer, particularly those that go on to the California or United States Supreme Court.

In the last year for which statistics are available in California, the median time for decision in civil cases in the courts of appeal was about 17 months; half of the appeals took longer and half took less. Ninety percent of appeals were decided in slightly less than two years.

However, the times vary quite a lot from one court to another. The fastest California appellate court disposed of 90% of its civil cases in about 22 months. The slowest took three years.

What are my chances of winning an appeal?

In California, about one civil appeal in six results in reversal of the trial court, in whole or in part. Looking at it from the other direction, the chances are about five to one that any civil appeal will lose.

Some kinds of trial court rulings are more likely to be reversed than others. One example is an order in which the trial court dismissed the entire lawsuit on technical grounds before trial. Punitive damage awards are vulnerable to reversal on appeal.

Other kinds of rulings are less likely to be reversed. An appellate court will be unlikely to overturn a judgment after a full trial. Appellant will have to make a convincing argument that the trial court committed an error that was so serious that it prevented appellant from having a fair trial and opportunity to fully present his or her case.

Can I appeal because the jury or trial judge believed evidence that wasn’t true?

Unfortunately, it is not proper to argue on appeal that the jury—or the trial judge in a case tried without a jury—should not have believed evidence that supports the judgment.

It’s the job of the jury or trial judge to determine the facts from the evidence presented at trial. The job can be difficult. Witnesses often give inconsistent, even completely contradictory, versions of events. There may be reason to doubt the credibility of one witness or another. There are often questions about the legitimacy or authenticity of documents. Even when there are no contradictions in the testimony or documents, evidence can frequently be interpreted different ways. As the appellate courts put it, a reasonable person may be able to draw different, conflicting inferences from the evidence. Viewed one way, a piece of evidence may favor plaintiff; viewed another way, it may favor defendant.

But it is for the jury or trial judge alone to decide just what the evidence proves, to decide which witnesses are most believable, which evidence is most convincing, and which inferences are most reasonable. An appellate court cannot second-guess these determinations by the jury or trial judge.

So, an appellate court cannot consider an argument that the jury believed witnesses who lied or documents that were falsified. As one court said in a classic statement of the rule, appellate courts “have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.” Overton v. Vita-Food Corp. 94 Cal.App.2d 367, 370 (1949).

Can an appeal court ever overturn a judgment for lack of evidence?

Yes, but rarely.

Almost every case involves two kinds of basic disputes: over the facts and over the law. The trial court is responsible to determine the facts. The appellate court’s concern is whether the trial court followed the law in deciding the case.

So, when it comes to the facts of a case, the appellate court accepts the facts as found by the jury or trial judge. The appellate court cannot overturn those findings unless there is no substantial evidence in the record to support them.

In deciding whether there is substantial evidence that supports the factual findings, the appellate court views the evidence in the way that most favors the judgment. The court will accept all evidence and draw all reasonable inferences from the evidence that support the trial court’s findings. Even though the appellant may argue that there was overwhelming evidence to the contrary, the appellate court will still uphold the findings if there is any substantial evidence in the record, or reasonable inferences that could be drawn from the evidence, supporting them.

What if the trial judge made a bad discretionary decision?

Many decisions are left to the trial judge’s discretion. Child custody is a good example. If the parents have separated but cannot agree between themselves how custody and visitation will be handled, a judge will have to make the decisions for them. It is a delicate and difficult task, and each case presents its own problems. The law leaves the decision almost entirely to the discretion of the trial judge.

Appellate courts rarely overturn discretionary rulings. Appellant has the heavy burden to show that the trial judge abused his or her discretion. Many cases hold that a trial court does not abuse its discretion unless, viewing the record in the light most favorable to the trial judge’s ruling, no judge could reasonably make the same decision.  Many cases say that a court does not abuse its discretion unless its decision is “beyond the bounds of reason.”

Applying that standard, appellate courts seldom conclude that a trial judge abused his or her discretion. Appellate judges often emphasize that they would not necessarily have made the same decision if they had been sitting in the trial court. Nevertheless, they will still affirm the trial court’s discretion call if there is a rational and reasonable basis for the ruling in the record.

Will the appeal court reverse for any legal error?

An appellate court will seldom reverse a judgment solely because the trial judge committed legal error. This is especially true where the judge made a procedural error or improperly admitted or excluded evidence at trial.

The California Constitution provides that no judgment may be vacated because of procedural error or error in admitting or excluding evidence unless the court is convinced that the error resulted in a miscarriage of justice—that is, that the error affected the outcome and that there is a reasonable probability that the judgment would have been more favorable to appellant if the error had not occurred.

This is often referred to as the “harmless error” rule, which is a shorthand way of saying that the appellate court will not reverse for error that was not prejudicial to the appellant. Even when error is clear, appellant must still go farther and convince the appellate court that it affected the outcome. Otherwise, the appellate court will still affirm the judgment.

The appellate process in a nutshell

The first step in taking an appeal is filing a notice of appeal with the trial court. The appellant, the party who appeals, must then obtain a record of the trial court proceedings. Once the record is filed in the court of appeal, the parties submit their briefs—written arguments summarizing the facts, citing legal authorities and arguing why the judgment should be reversed or affirmed. After the appellate court has reviewed the briefs, the record, and relevant legal authorities, the court will issue its decision. Some appellate courts can decide cases without hearing oral argument. In others, parties have a right to oral argument.

Filing the notice of appeal

An appeal starts with filing the notice of appeal in the trial court. The timing of the notice of appeal is critical. If it is filed too late, the appellate court cannot consider the appeal; once the time to appeal has run, the appellate court loses jurisdiction—the power to hear the case.

The time starts when the trial court enters a final judgment or an appealable order. In California, the normal time to appeal is 60 days from the date that the court or a party mails a notice that the judgment has been entered. If a notice of entry is not sent, the time can be as long as 180 days from the date that the judgment was entered. Most lawyers who win a trial court ruling will immediately send a notice of entry when the ruling is entered since that starts the shorter, 60-day time to appeal.

An appeal can never be taken more than 180 days after entry of judgment, with one small exception: if the last day falls on a Saturday, Sunday or court holiday, then the notice of appeal can be filed on the next day that the court is open.

These are the general appeal times that apply in the great majority of cases. But in a few special types of actions, the time to appeal is shorter, as little as 10 days.

In federal court, the normal time to appeal in federal is 30 days from the entry of judgment. If the federal government was a party to the action, then the appeal can be taken as long as 60 days after entry of judgment.

What happens if the appeal isn’t filed in time?

In California, a late notice of appeal is ineffective. Once the time to appeal runs, the appellate court loses the power to hear an appeal.

There are a few situations in which the normal time to appeal can be extended. If one party appeals, all other parties are given an additional 20-day period in which they can also appeal. The time to appeal can also be extended up to 30 days for certain motions, such as a motion for new trial or for reconsideration. And, as noted under “Filing the Notice of Appeal,” if the last day to appeal falls on a Saturday, Sunday or holiday, the appeal can be filed the next day that the clerk’s office is open. 

But, in California, once the time, including any of those extensions, has run, it is no longer possible to appeal.

Federal courts may allow a party to file a late notice of appeal. The federal rules allow a party to appeal up to 30 days late, but only if the district court finds that the appeal was not filed in time because of “excusable neglect or good cause.” There are also exceptional circumstances under which the district judge can extend the time to appeal even longer.

What about cross-appeals?

Sometimes, both sides are dissatisfied with the judgment and may want to appeal. Suppose, for example, that the plaintiff recovers a judgment for money. The defendant may appeal and argue that plaintiff should not have won anything. Plaintiff, on the other hand, may be dissatisfied with the amount of the judgment and file a cross-appeal arguing that the trial court should have awarded more.

There are special rules and procedures in cross-appeal cases.

Designating the record

Once the appeal has been filed, the next step is to designate the record-that is, to notify the trial court clerk what documents to transmit to the court of appeal so it can review the trial court proceedings.

The record is usually in two parts. One part consists of copies of relevant pleadings that were filed in the trial court—typically, plaintiff’s complaint, defendant’s answer, papers in support of and in opposition to various motions, the court’s orders and the judgment.  This portion of the record is the clerk’s transcript.  It may also be an appendix prepared by the appellant or by both parties. In the federal courts of appeal the appellate prepares an excerpt of the record containing the relevant documents.

The second part of the appellate record is the court reporter’s transcript of oral proceedings in court. A reporter’s transcript is usually necessary after a trial, since that is the only way that the court of appeal can see what the witnesses testified and know what evidence the trial court considered. The transcript may also be necessary to show other things that happened in the courtroom, such as objections to evidence, oral rulings by the judge, and so forth.

In some cases, such as when a case has been dismissed on motion without a trial, it may not be necessary to have a reporter’s transcript. It may be sufficient to give the court of appeal only copies of the papers in support of the motion and the opposition.

Once the record has been prepared and filed with the appellate court, the real work of the appeal begins, writing the briefs. In some courts, however, preparing the record is suspended while the court determines whether the case can be mediated. If the case is sent to mediation but doesn’t settle, then the record preparation begins.

Just what is a brief?

“A lawyer is a person who writes a 10,000 word document and calls it a brief.”-Anonymous (Franz Kafka?)

The brief is the heart of an appeal. It is a written argument that explains the facts of the case and why the trial court’s ruling that has been appealed should be reversed or affirmed.

Most appeals are won or lost based on the briefs. Oral argument rarely affects the outcome. For that reason, most of the appellate lawyer’s time will be spent in preparing the briefs.

The hallmarks of a good brief are:

  • Clarity. The brief should be clear, direct and logical. An appellate judge and his or her staff must read literally dozens of briefs every week. A good brief is one that presents an argument succinctly and in a way that can be readily understood.
  • Honesty. The brief must fairly present the evidence. For appellant, this means that the opening brief must summarize all of the evidence, not just the evidence supporting appellant’s position. The cases, statutes and other legal authorities cited in the brief must fairly support the rule or principle for which they are cited. A party who files a brief that misstates the facts or law loses credibility.
  • Accuracy. Trial court records are often thousands of pages made up of the reporter’s transcripts, trial exhibits, pleadings and other documents. Each fact stated in the brief must be supported by a citation to the exact place in the record where that fact can be found. Likewise, legal citations in the brief must inform the court exactly where in the vast libraries of the law it can find the specific point that the citation supports. Citations to the record and legal authorities must be precise and accurate to avoid wasting the court’s time. Appellate courts will not comb through the record to find evidence or material supporting a party’s assertions in a brief.
  • Brevity. Kafka, or whoever first remarked about a lawyer writing 10,000 words and calling it a brief, would probably be dismayed to learn that appellate briefs can be much longer. Rules on appeal commonly allow briefs as long as 14,000 words; double that when there is a cross-appeal. In complex cases with very large records, the court may allow even more. But longer briefs are not usually better briefs. Judge Alex Kozinski of the Ninth Circuit Court of Appeals said it best in an article on sure ways to lose an appeal, “The Wrong Stuff,” published in the 1992 Brigham Young Law Review:

 “First, you want to tell the judges right up front that you have a rotten case. The best way to do this is to file a fat brief. . . . Let the judges know you don’t have an argument capable of being presented in a simple, direct, persuasive fashion. Keep in mind that simple arguments are winning arguments; convoluted arguments are sleeping pills on paper. . . .

When judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief.”

Writing a brief that meets all of those criteria takes time. It can’t just be tossed off in a single, stream-of-consciousness draft. A brief will usually go through at several drafts. The process takes at least several days, often weeks.

How many briefs are there?

Usually, there are three briefs. Appellant files the opening brief, which summarizes the facts and sets out the legal arguments why the court of appeal should reverse the trial court’s ruling. This is the most critical brief. Points not raised in the opening brief are ordinarily waived. Even if the opposing party does not file a brief, appellant does not win by default. Appellant always has the burden in the opening brief to convince the appellate court that the trial court committed legal error that requires reversal.

Once appellant has filed the opening brief, the other party—”respondent” in the California courts, “appellee” in the federal courts—may file a brief arguing why the trial court should be affirmed.

Appellant then has an opportunity to file a short closing brief. Appellant traditionally has the last word because appellant has the burden to convince the appellate court to reverse.

In some cases, there may be more briefs. The appellate court may order parties to file additional briefs on particular issues. In cases with cross-appeals, each side will file an opening brief, a response to the other side’s brief, and a closing brief, four briefs altogether.

What is an amicus curiae brief?

Occasionally, an appeal will raise legal issues that are of concern to organizations or individuals beyond the parties in the lawsuit. An environmental organization, for example, may be concerned about an appeal in a case where a government agency approved a commercial development in an environmentally sensitive area. An industry group may be concerned about an appeal in which an issue is the interpretation of a statute that affects the industry’s operations.

A group or individual that is not a party to the lawsuit, but that has an interest in the issues, may ask the court for permission to file a brief as an amicus curiae, a “friend of the court,” supporting one side or the other. If the court allows the amicus curiae brief, the parties to the appeal are given an opportunity to file briefs in response.

Who decides the appeal?

Once briefing is complete, the case is ready for decision. The case will be decided by a panel of at least three judges. In the United States Supreme Court, there are nine justices. The California Supreme Court has seven.

Most appellate judges are appointed, by the Governor if they are on the state court, or by the President if on a federal court, although in some states, appellate judges are elected. Most appellate judges were trial court judges before being elevated. Occasionally a law professor or eminent attorney will become an appellate judge without first being a trial judge. All appellate judges have many years of experience before going to the appellate bench.

What happens in the courtroom?

The only court appearance in an appeal is a short oral argument by the attorneys. Witnesses do not testify and parties do not offer evidence. The only evidence that the appellate court considers is the record of evidence that was presented in the trial court. The oral argument is on the points of law raised in the appeal.

In many cases, the argument is only a few minutes. Some courts specify when they set a case for argument how much time each side will have; 10 or 15 minutes is common. Thirty minutes for each side is usually the maximum.

The reason oral arguments are short is that, by the time of oral argument, the judges will have read the briefs, reviewed the record and researched the law. In many courts, the judges will already have reached a tentative decision, although only a handful of appellate courts release tentative opinions before hearing the oral argument.

Argument on appeal usually involves a fair amount of back-and-forth between the judges and the attorneys. The judges will ask about specific facts, about particular judicial precedents, about the interpretation of a statute. Sometimes, the questions are hypothetical, asking if the party’s position would be different if the facts were changed slightly. Through the questions and answers, the judges verify clarify their understanding of the facts and the law, test their theories, and refine their views.

The attorney must be completely familiar with all aspects of the case since he or she must respond to the court’s questions immediately. If the case raises an issue that has not been decided before or the court is being asked to extend or modify existing law, the attorney must also be thoroughly familiar with policy considerations that would support a decision one way or the other to be able to argue persuasively why the court should adopt the rule that favors his or her client.

So, even though an appellate argument is short, preparation will take at least many hours, often days. In cases that reach the higher courts, preparation can take weeks.

How does the court render its decision?

Appeal courts issue written opinions, although, in some appellate courts, an opinion may be a fairly terse memorandum. In California, under the State Constitution, the appellate courts must issue a written decision in every appeal.

Through much of American history, virtually all decisions of the appellate courts were published in volumes of official case reports and could be cited as precedents. In recent years, however, fewer and fewer cases have been published as precedents. Today, only about 10% of the decisions of the California Courts of Appeal are published, although all decisions of the California Supreme Court are published.

In some courts, an unpublished decision can be cited as “persuasive,” but not binding authority. In California, an unpublished decision of a California court of appeal cannot be cited at all in other cases, but it is still binding on the parties to the appeal.

What happens after the appellate court issues its decision?

A party dissatisfied with the appellate court’s decision can petition for rehearing—that is, ask the court to reconsider. Rehearing petitions are seldom granted.

It may be possible to take the case to a higher court. In California, a party may petition the California Supreme Court for review. Except in death penalty cases, there is no automatic right to go to the California Supreme Court; the justices themselves decide by majority vote which cases they will take. Very few cases make it to the California Supreme Court. The court grants and hears only about 4% of the cases that petition for review.

If the case is in a federal court of appeals, or if it is in a state court but it raises issues of federal law, a party may petition the United States Supreme Court to hear the case. Again, with only a few exceptions specified in the Constitution, the Court decides which cases it will hear. The chances are even slimmer than being heard in the California Supreme Court. The US Supreme Court grants less than 2% of the petitions for certiorari filed each year.

Does winning the appeal end the case?

Not necessarily. Sometimes the appellate court will reverse completely, instructing the trial court to enter judgment for the appellant. This could happen, for example, where the plaintiff recovered judgment in the trial court but the appellate court holds that the plaintiff did not have valid legal grounds to sue. In that situation, the defendant who appeals and wins in the appellate court wins the case.

Far more frequently, however, the appellate court reverses a judgment or order and remands the case for further proceedings. For instance, if the trial court erred in admitting particular evidence at trial and the appellate court finds that the error was prejudicial, the appellate court will remand the case for a new trial at which that evidence would not be admitted. In these cases, winning the appeal is only winning a battle, not the war.

Even where the appellate court reverses completely and instructs the trial court to enter judgment for the appellant, there will be some additional proceedings in the trial court to recover costs on appeal and, in cases where attorney fees can be recovered, to obtain an order awarding fees for the appeal. In some cases there may also be further trial court proceedings to enforce the judgment or to deal with other post-judgment issues.

What does an appeal cost?

Appeals are expensive. Most appellate attorneys charge by the hour. The typical appeal requires at least about two to three weeks of full-time work, about 80-120 hours or more. As noted above, although oral arguments are short, preparation takes many hours, sometimes days. Fees will mount quickly.

But that’s only part of the cost.

If there was a trial, the reporter’s transcript will add additional expense. By statute in California, a full day of trial will cost about $650. The transcript of a trial that ran ten full days will cost about $6,500.

There will also be additional charges for the clerk’s transcript, appendix or excerpts of record. This can commonly run into many hundreds, even thousands, of dollars, depending on the amount of material that is included.

Another expense often overlooked is judgment interest. In California, judgments earn interest at 10% per year, 7% if the judgment is against a public agency. If a case is on appeal for two years, interest alone will add as much as 20% to the judgment if it is affirmed. The longer the case is on appeal, the greater the interest will be.

If appellant is appealing a money judgment and posts a bond to stay enforcement while the appeal is pending, the premium on the bond must also be considered.

In many cases, a contract or statute entitles the party who won in the trial court to recover attorney fees from the loser. In these cases, if the appellate court affirms the judgment, the appellant will also have to pay the party who won the judgment additional attorney fees for the appeal. Remember that only about one appeal in six wins. So, in a case where attorney fees can be awarded, the odds are about five to one that appellant will end up having to pay the other side’s attorney fees on appeal.

There are still other expenses that cannot be overlooked. If the trial court threw the case out before trial, reversal will put the case back on track to go to trial. The appellant will then have the opportunity to spend more in legal fees and court costs for trial. If the case went to trial and the appeal is from the final judgment and the appellate court reverses, it will most likely order a new trial. Again, winning the appeal will mean that the appellant will face the legal expenses for a new trial.

Are there any risks in appealing?

As bad as losing in the trial court may be, an appeal can sometimes make matters worse.

The court of appeal may sanction an appellant for taking a frivolous appeal—one that is utterly without merit and taken even though no reasonable lawyer would believe that the appeal had any hope of success, or is taken solely to harass the opposing party or delay the case. These sanctions are imposed only in extreme cases. But, if the court does levy sanctions, it can impose a monetary fine, which may include requiring the appellant to pay the opponent’s attorney fees.

Even a successful appeal has its risks. If the court of appeal reverses a final judgment and sends the case back for a new trial, there’s no guarantee that appellant will win the new trial, or win enough to justify what it cost to take the appeal. Appellant could lose again, even worse than the first time.

For example, assume the defendant loses at trial and the court awards substantial damages. The defendant appeals and the court of appeal reverses and sends the case back for a new trial. At the end of the retrial, it’s possible that the defendant could lose again, and that the damages could be even more than the amount awarded at the first trial. And if it’s the kind of case where attorney fees can be recovered, the defendant may have to pay all of the plaintiff’s attorney fees through the entire proceeding, from the first trial, through the appeal, and through the second trial.

Does this mean that no one should ever appeal?

Of course not. But even if it is clear that the trial court committed legal error, that is only the starting point in deciding whether to appeal. One must also carefully consider all of the other factors, including: the low odds of winning a reversal; legal fees and expenses of the appeal itself; interest that will accrue if the court awarded a money judgment; the potential of having to pay the opposing party’s attorney fees; additional legal fees and expenses that may be incurred in the trial court if the case is remanded for further proceedings; the possibility of an even worse outcome of any further trial court proceedings.

An appeal should be taken only if there is enough at stake to justify the expense in light of those factors, and there are reasonable arguments that the trial court committed error that was so prejudicial to appellant’s rights that the judgment must be reversed.

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