Note: The following summaries provide only general information. There might be exceptions that apply to your case. Consult your appellate lawyer before making any decisions.
- What is an Appeal?
- Can Any Ruling Be Appealed?
- Filing the Notice of Appeal
- Designating the Record
- Finding a Lawyer
- Staying Execution of the Judgment
- Appellant’s Opening Brief
- Respondent’s Brief
- Appellant’s Reply Brief
- Oral Argument
- The Appellate Court’s Opinion
- Further Appeals
- The Remittitur
- Risks of Appealing
What Is An Appeal?
The party who lost in a trial court may file an appeal in a higher court, which is authorized to “reverse” the trial court’s ruling.
In California, our trial courts are called “Superior Courts”. Every county has a Superior Court, located in the county seat, sometimes with branch courts in other cities.
Each Superior Court takes two types of civil cases: “limited jurisdiction” cases (where the claim is no more than $25,000, and most unlawful detainer cases) and “unlimited jurisdiction” cases (where the claim is over $25,000).
Rulings in limited jurisdiction cases are appealed to the Appellate Department of the Superior Court. Rulings in unlimited jurisdiction cases are appealed to the Court of Appeal. There are six District Courts of Appeal in California, each handling appeals from Superior Courts in the counties in their district. See http://www.courts.ca.gov/courtsofappeal.htm↑ back to top
Can Any Ruling Be Appealed?
No. You have a right to appeal a trial court’s final judgment or a ruling made after judgment (such as an order directing the losing party to pay the winner’s attorneys fees).
But you have no right to appeal rulings made before or during trial. In rare situations, however, you might challenge such rulings by a petition for writ of mandate. But the appellate court may deny this petition without giving the petitioner a hearing or any explanation for the denial.↑ back to top
Filing the Notice of Appeal
File the notice of appeal in the Superior Court clerk’s office, along with a filing fee currently running about $655 in unlimited jurisdiction cases and between $205 and $330 in limited jurisdiction cases..
In unlimited jurisdiction cases, where you are appealing to the Court of Appeal, the notice of appeal must be filed within 60 days after the appellant is notified that judgment was entered. Only 30 days are allowed in limited jurisdiction cases, where you are appealing to the Appellate Department.
No exceptions, no excuses. If you fail to file within this time period, the court will not hear your appeal, no matter what.
In the notice of appeal, you must specify the judgment or order you are appealing from. Usually, “the judgment entered on [date]” will do the job. But note that a post-trial award of attorneys fees is a separate ruling and you will have to file another notice of appeal from that award. The notice of appeal from the judgment will not include the attorneys fee award.
The Rules on Appeal appear at http://www.courts.ca.gov/title_8.pdf.↑ back to top
Designating the Record
Within 10 days after you file the notice of appeal, you must file in the Superior Court a document that “designates the record” that will go to the Court of Appeal. The record consists of (1) reporter’s transcripts of the testimony presented at the trial or hearings, and (2) documents. If you designate reporter’s transcripts, you will have to pay the court reporter for typing up the transcripts. You may designate documents by asking the court clerk to put them together, in which case you must pay the clerk copying costs. Or your lawyer may put together an Appendix that contains the documents.↑ back to top
Finding A Lawyer
Appellate courts operate under rules and approaches different from those used by trial courts. Find a lawyer who has experience handling appeals – and a record of some success in appellate courts. Some trial lawyers have successfully litigated some appeals, but many have not.
Appellate courts reverse only about 20% of the time. If the lawyer says 40% of his cases get reversed, this is a good sign – if he represented the appellants. It is not a good sign if he represented the respondents (who were defending the trial court judgment).↑ back to top
Staying Execution of the Judgment
The party who wins a money judgment in the trial court may “execute” on that judgment right away – i.e., get the Sheriff to sell some of the loser’s property and give the money to the winner – unless execution is “stayed”. Filing a notice of appeal does not stay execution of the money judgment. To get a stay, the appellant must post “security” that enables the winner to collect the money if the Court of Appeal affirms the judgment. Security may take the form of a “bond” (an insurance policy for just this purpose) for one and one-half times the amount of the judgment, or property worth twice the amount of the judgment.
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Appellant’s Opening Brief
After the record on appeal is filed, the Appellant has about 30 days to file an Opening Brief. There are special appellate court rules dictating what must be in the brief and how the facts and argument must be presented, and there are special tactics an experienced appellate lawyer will employ when writing the brief. See, for example, Moskovitz, Winning An Appeal (Lexis, 4th ed).↑ back to top
After the Appellant’s Opening Brief is filed, the winner below – called the “Respondent” or “Appellee” – gets 30 days to file their brief. Here again, special appellate court rules apply, and there are special tactics to use when writing the brief.↑ back to top
Appellant’s Reply Brief
After the Respondent’s Brief is filed, the Appellant gets 20 days to file a Reply Brief that addresses the arguments made in the Respondent’s Brief. Normally, this is the last brief filed.↑ back to top
A few months after the Reply Brief is filed, the Court of Appeal will ask the parties if they would like to orally argue the case in front of the three-justice panel that will decide this appeal. If either lawyer says yes, the Court will give each party a short time (usually 15 to 30 minutes) to argue. No testimony or other new evidence may be presented at the oral argument. You may attend and watch from the gallery.
Before telling your lawyer to request oral argument, consider these facts: (1) you will have to pay your lawyer to spend many hours preparing for oral argument; (2) because the Court has already drafted an opinion before setting the case for oral argument, it is very difficult and very rare for the Justices to change their minds at oral argument.↑ back to top
The Appellate Court’s Opinion
A few months after the oral argument, the Court of Appeal will issue a written opinion that says that the lower court opinion is affirmed, reversed, or modified. The opinion is usually 10 to 30 pages long, giving a complete explanation for the ruling.↑ back to top
“I’ll take this all the way to the Supreme Court!” No you won’t, unless you are very lucky and have a very good lawyer.
The party that lost in the Court of Appeal may petition the California Supreme Court to review the case, but that Court may pick and choose which cases it takes from the Courts of Appeal. Because the Supreme Court is overloaded with death penalty appeals and many petitions for review, it grants only a tiny handful of petitions for review. The fact that you were treated unfairly or the Court of Appeal decision is “wrong” is not enough to grab the Supreme Court’s attention. You must also show that the main issue in the case affects many people, or that the Court of Appeal decision conflicts with the decision of another Court of Appeal.
It is even tougher to get the United States Supreme Court to grant a “writ of certiorari”, i.e., to agree to hear your case. That Court might do so if the case involves a Constitutional or other federal question, but here again, the Court is so overloaded with petitions that the chance it will hear your case is very small.↑ back to top
When all appeals are final, the Court of Appeal will issue a “remittitur” that sends the case back to the trial court to finish up whatever else needs to be done.
If the Court of Appeal reverses the trial court, what happens next depends on the ruling that was appealed. If, for example, the trial court had granted “summary judgment” to the other side and the Court of Appeal reversed that summary judgment, the case will be sent back to the trial court for trial. On the other hand, if the trial court had undone a jury verdict by granting a motion for new trial, the Court of Appeal’s reversal of that grant will simply reinstate the jury verdict and the case will be pretty much over.
The Court of Appeal’s opinion will often award “costs” to the winning party, which means that the loser must pay the winner whatever costs the winner incurred in handling the appeal. These costs usually include filing fees, copying costs, transcript costs, and the like. The trial court (not the Court of Appeal) will decide what costs to award.
“Costs” does not include the winner’s attorney’s fees incurred for handling the appeal. The winner may recover “reasonable” attorneys fees only if a contract or statute so provides. The trial court – not the Court of Appeal – determines what is “reasonable.”↑ back to top
Risks of Appealing
Filing an appeal is risky business. Usually, your chance of getting a reversal hovers around 20%, and it might cost you a lot to lose.
You will have to pay a lawyer to handle your appeal. You will have to pay for the Reporter’s Transcript and assembling the Appendix or Clerk’s Transcript. You might recover costs from the other side if you win the appeal – and recover your attorney’s fees if a contract or statute so provides. But if you lose the appeal, you won’t be able to recover these amounts, and you might have to pay your opponent’s costs and maybe his attorneys fees. And if you win the appeal, you still might have to go to trial before claiming victory.
You might have strong emotions about the injustice of the trial court’s decision. But also take a cold, hard look at the financial costs and potential benefits of appealing. For example, suppose the trial court entered a judgment against you for $100,000, it will cost you $30,000 to pay your appellate lawyer, and a reversal will end the case and wipe out the $100,000 judgment. If your lawyer conducts a careful analysis of the case and concludes that you have a 50% chance of winning the appeal, it makes sense to appeal. You will be investing $30,000 to get a 50% chance of winning $100,000. If you could get odds like that in Vegas, you’d be very wealthy.
Most cases are more complicated, where costs of a retrial and the risk of an award of attorneys fees on appeal to your opponent must also be considered. But the same basic method of analysis should be done in every case.
Deciding whether to appeal is a big decision. Discuss it with an experienced appellate lawyer first. It might cost you a few dollars to get this opinion, but it’s well worth it.